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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF
SECURITIES OF SMALL BUSINESS ISSUERS
Under Section 12(b) or (g) of The Securities Exchange Act of 1934
OMICRON TECHNOLOGIES, INC.
(Name of Small Business Issuer in its Charter)
Florida 65-0032447
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
114 W. Magnolia St. Ste 400-128 , Bellingham, Washington 98225
(Address of Principal Executive Offices) (Zip Code)
877-903-2288
(Issuer's Telephone Number)
Securities registered under Section 12(b) of the Exchange Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
n/a n/a
Securities registered under Section 12(g) of the Exchange Act:
Common Equity, Par Value $ .001
(Title of Class)
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OMICRON TECHNOLOGIES, INC.
FORM 10SB
TABLE OF CONTENTS
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No. Title Page No.
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PART I
Item 1: Description of Business..................................................................... 3
Item 2: Management's Discussion and Analysis or Plan of
Operations.................................................................................. 10
Item 3: Description of Property..................................................................... 19
Item 4: Security Ownership of Certain Beneficial Owners
And Management.............................................................................. 20
Item 5: Directors, Executive Officers, Promoters and Control
Persons..................................................................................... 20
Item 6: Executive Compensation...................................................................... 22
Item 7: Certain Relationships and Related Transactions.............................................. 22
Item 8: Description of Securities................................................................... 23
PART II
Item 1: Market Price of and Dividends on the Issuer's Common
Equity and Other Stockholder Matters........................................................ 23
Item 2: Legal Proceedings........................................................................... 24
Item 3: Changes in and Disagreements with Accountants............................................... 24
Item 4: Recent Sales of Unregistered Securities..................................................... 24
Item 5: Indemnification of Directors and Officers................................................... 28
PART F/S
Financial Statements........................................................................ 29
PART III
Item 1: Index to Exhibits........................................................................... 29
Item 2: Description of Exhibits..................................................................... 30
Signatures.................................................................................. 32
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Item 1: Description of Business
Omicron Technologies, Inc.(formerly All Nations Catering, Inc.) (the
"Registrant") is a Florida corporation formed on February 2, 1988. Its principal
place of business is located at 114 W. Magnolia St. Ste 400-128, Bellingham
Washington. The Registrant operates on the calendar fiscal year. The Registrant
was organized to engage in any lawful corporate business, including but not
limited to participating in mergers with and acquisitions of other companies.
The Registrant has been in the developmental stage since its inception and has
no operating history up to June 1998. On June 29, 1998 the Registrant changed
its name to Omicron Technologies, Inc.
On February 26, 1988, 5,000 shares of stock were issued to the founding
shareholders for services rendered.
The original capitalization of the Registrant was 7,500 common shares
with a par value of $ 1.00 per share. The capitalization was amended on May 11,
1998 to increase the amount of shares authorized to 50,000,000 and the par value
was changed to $ .001.
On May 13, 1998, there was a forward split at 200:1, changing the
issued stock to 1,000,000 to the founding shareholders.
The primary activity of the Registrant for the last three (3) years
preceding June of 1998 involved the seeking of a Registrant or companies that it
could acquire or with whom it could merge. During the aforementioned periods, no
such acquisition or merger had taken place and the Registrant had no operations
of any kind.
The Registrant together with its subsidiaries which include Cyberweb
Systems Inc. and Interactive Radio Corporation are in the developing stages of
production of various products and services which include Active Pixel
Sensor(APS) and APS Wireless Technology and internet related services.
The APS technology was developed through NASA's Jet Propulsion
Laboratory which was originally created for NASA's space program. The APS
technology is an electronic eye that utilizes amplified pixels or picture
elements in a semiconductor chip. The technology will have wide use in such
areas as vehicles, cameras, computers, hand-held devices, medicine and toy
industries.
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Electronic imaging is currently based on a sensor technology known as
charge-couple device(CCD), which was originally developed at Bell Laboratories
in the late 1960's. CCD's work well, but are difficult to produce and have high
power consumption, which limits the prospects for miniaturization.
This APS technology will find it's uses as follows:
Video Conferencing
PC based video conferencing will allow businesses to save money by
reducing the need for air travel. Anyone with a PC can get in touch with
colleagues in a matter of minutes at a fraction of the cost.
PC based video conferencing is predicted to see a 70% increase in sales
through 2001 and globally the expansion will be 40% through 2001.
It is projected that 25% of all PC computers will carry this video
conferencing chip as standard equipment.
Digital Still Camera
Digital still cameras are becoming a serious alternative to traditional
photography because of their ability to interact with a PC and the ability to
print such pictures from your own PC. World wide growth in this area is expected
to increase at the rate of 100% per year to 2002.
Camcorders
With the introduction of APS technology, traditional camcorders will be
replaced with the new digital imaging camcorders which will be smaller and
cheaper.
Biomedical
The technology will find to be very useful in medical and dental
imaging, x-ray, teeth imaging and surgical scopes because of its lower cost and
superior imaging qualities.
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Defense
The technology will be useful in surveillance equipment, miniature
unmanned airborne vehicles, reconnaissance, low light level imaging and
integrated low light/thermal IR sensors.
Thus the potential the Registrant will obtain from this technology is
tremendous.
Recent Developments
Beginning in June 1998, the Registrant has made a number major
acquisitions of businesses via share purchases or share exchanges or the
purchase of assets.
Share Purchase/Exchange
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Business Activity at Effective Date
Name and Location the Time of Acquisition of Acquisition
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1. Cyberweb Systems, Developing computer July 5, 1999
Inc. software and computer
British Columbia, consulting
Canada
2. DynCom, Inc. Developing computer October 19,1999
Colorado smart card technology
Corporation
3. Interactive Radio Owns 3 patents regarding October 22,1999
Corporation global positioning
Nevada, software
Corporation
Purchase of Business Activity at Effective Date
Business Assets the Time of Acquisition of Acquisition
1. Global Interactive Purchase of on-line June 4, 1999
Ltd. gaming licence
Nevis, W.I.
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2. Kaleidoscope Purchase of assets July 16,1999
International, Ltd. consisting of on-line
Belize, Corporation bingo and on-line
gaming software
3. Fairwind Development of software September 17,
Technologies Ltd. complementary to 1999
British Columbia, on-line gaming
Canada
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Purchase of Non-Exclusive Casino Website License
On June 4, 1999 the Registrant purchased from Global Interactive Ltd.,
a Nevis corporation a licence on a non-exclusive basis, to use an internet site
for the Lucky Eight Casino, the Registrant's online casino website which will
target Chinese speaking communities worldwide. The purchase price was $ 45,000.
The licence runs for a term of 3 years and is automatically renewed at no cost
in perpetuity.
Purchase of Wholly-Owned Subsidiary - Cyber-Web Systems, Inc.
On July 5, 1999, the Registrant acquired 100% of the shares of Cyberweb
Systems Inc., a private Canadian Registrant which has commenced the business of
developing computer software, hosting and designing websites and providing
computer consulting. The purchase price paid in stock was $ 185,938 represented
by 175,000 shares at the average market price of the stock on the date of
closing.
Cyberweb specializes in Internet gaming software development. Its
programming and systems expertise complement the development and operations of
the Registrant's casino and bingo sites.
Through this acquisition the Registrant gains control of a new,
full-service financial website. The site will include free real-time quotes on
all US and Canadian stocks, as well as Java chat, COMTEX news and free portfolio
tracking that will send updates via email when a stock price reaches a high or
low parameter set by the user. The website will also feature a weekly stock game
challenge.
Purchase of Assets, Kaleidoscope International, Ltd.
On July 16, 1999, the Registrant acquired all of the assets of a
Registrant called Kaleidoscope International Ltd. a Belize corporation for an
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aggregate purchase price of $335,938 represented by 250,000 at the average
market price on the date of closing. The main thrust of the purchase was the
software for a new venture called MaXum Bingo, which allows a player to play
bingo over the internet and interact live with a bingo hall.
Fairwind Technologies, Ltd., Software Development Agreement
On September 17, 1999 the Registrant entered into a software
development agreement with Fairwind Technologies Ltd., a British Columbia
corporation. Fairwind has been engaged to develop "Front-End Product" and
"Back-End Product" technology used by customers on the internet for which the
Registrant is acquiring the distribution rights of the Products more
specifically described as follows:
Front-End Product
Front-End Product means computer software developed and owned by
Fairwind comprising the web pages and game client software which provides for
the playing of games as follows:
a) single player game with server: video poker, slot machine,
black jack, roulette and craps;
b) multi-user game with server: black jack, roulette; and
c) multi-player games: poker, roulette, baccarat and black jack.
Back-End Product
Back-End Product means computer software developed by Fairwind
comprising the accounting communications and administration modules with
inter-operate with the Front-End Product.
The Registrant has agreed to pay Fairwind a total of $548,000 Canadian
both in cash and free trading shares based on the completion of the development
of the Products.
The payment schedule is as follows:
a) $123,300 Canadian paid within 3 days of execution of the
Agreement and delivery of 12,050 of free trading stock and an
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option to acquire 6,025 shares at the option price of US $2.31
within 30 days; and
b) the balance of the purchase price shall be paid within 14 days
after completion of the technology which is scheduled to be
December 15, 1999.
The conversion price relating to the common stock is defined in this
Agreement as being the weighted average of the closing trading price of the
shares for the 10 days preceding the date of acceptance of the Products.
If for some reason the Registrant cannot deliver free trading stock,
then the Registrant may deliver restricted common stock whose restriction for
conversion cannot be longer than 1 year and the number of shares delivered would
have to equal 120% of the number of free trading stock that would have had to be
delivered.
Purchase of Interest in Dyncom, Inc.
On October 27, 1999 the Registrant completed the acquisition of 13% of
a Registrant by the name of DynCom Inc., a Colorado corporation. The agreement
calls for the acquisition by the Registrant of 600,000 shares of DynCom for
200,000 restricted shares of the Registrant at a negotiated price of $3.00 per
share. Additionally the Registrant received 600,000 stock warrants at an
exercise price of $1.00 per share.
DynCom Inc., is a creator of e-solutions employing "smart card" and
"smart device", proprietary, biometric, and Internet/Intranet technologies into
effective and efficient e-solutions, e-applications and e-products. DynCom is a
leader in the developing Smart Card industry and has established the first Smart
Card technical laboratory creating applications and products that will have wide
spread use in many industries.
By adding biometric technologies such as finger print scan or eye
retina scan, it can be certain that not merely is the card present, but also
only the properly pre-authorized person can use the key. However, Smart Cards
and Smart Devices will be much more than just keys; they will include
applications that provide substantial benefits for both consumers and
businesses."
Both the Registrant and DynCom expect and look forward to extensive
cooperation in speeding development and marketing of their various products. In
particular, the Registrant anticipates that the DynCom "smart
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card" and "smart technologies" will have many valuable applications for
customers of the Registrant's interactive gaming sites.
Purchase of 100% of Interactive Radio Corporation
The single largest purchase by the Registrant is the completion of the
acquisition of 100% of the Common Equity of Interactive Radio
Corporation("Interactive") for an aggregate purchase price of $15,468,750
represented by the exchange of 5,000,000 shares at a negotiated price of
$309,375. This was completed in October 1999. The subsidiary owns three (3)
patents which combine navigation, broadcast and two-way communication services
which will provide mobile users with e-commerce, e-mail, travel, security,
global positioning and gaming at a relatively low cost. The initial marketing
will be in the automotive, trucking, and recreational vehicle markets.
The technology patented by Interactive is satellite communications
merged with GPS(Global Positioning System) that stands to revolutionize the
manner in which consumers use their radios. The patented architecture provides a
wide range of integrated broadcasting, navigation and two-way communications
services with a low cost terminal. The terminal is set up in such a manner the
user can listen to an audio program while the terminal simultaneously receives
or sends messages and other broadcast information.
This interactive technology enables the following:
- Nationwide digital audio channels
- Interactive audio entertainment
- Data broadcasts, including traffic information and
weather reports
- Two-way voice and data communications; and
- Precision navigation
By integrating these complementary services into low-cost terminals,
utility far beyond the simple addition of functions is possible such as:
- Integration of two-way data communications with audio
broadcasting, direct response to broadcast solicitations,
permitting consumers to order advertised services and to
respond to simple polls simply by pushing a button;
- Integration of precision navigation with data broadcasting
enables the displays of vehicle location and current
traffic
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hazards and congestion on a digital map. This information
can be used to automatically calculate and display the
information on real time traffic conditions;
- Integration of process navigation with two-way
communications permits users to request emergency
assistance from their vehicle and automatically inform
emergency service agencies precisely where the vehicle is
located; and
- Integration of two-way data and voice communications
permits transmission of voice pages to and from
automobiles, along with positive acknowledgments.
The Registrant anticipates development and deployment of the
Interactive technology within the next 2 years.
The Registrant is in the process of arranging funding to continue the
software development and to bring the products of the companies developing such
products to a point where such products can be sold in the marketplace.
While the Registrant is not a reporting Registrant, it will be
including audited financial statements for the year ended December 31, 1998.
Additionally the Registrant has prepared unaudited financial statements for the
nine months ended November 30, 1999 which will be provided to shareholders as
well.
The Registrant will be making available to the public all information
disclosed in this document which can be obtained from the Public Reference Room
by calling the SEC at 1-800-SEC-0330. The Registrant can be reached for
information at http://www.omicrontechnologies.com
Item 2: Management's Discussion and Analysis or Plan of Operations
The Registrant has engaged in October 1999 the services of Spencer
Edwards Inc. of Englewood, California to assist in raising a total of $9
million dollars to be released in tranches over the ensuing six (6) months. In
exchange for assisting in the financing, Spencer Edwards will receive 1/2 share
warrant at an exercise price of $4.00 per share for each share issued.
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Additionally the Registrant is securing two (2) additional private
placements totaling about 14 million dollars. These private placements are
anticipated be completed in the next 6 to 8 weeks.
Use of Proceeds
The Registrant will use the proceeds from the equity financing to:
1. Fund the costs of taking the technologies and products from their
state(mostly prototypes) into manufacturing.
2. Marketing and sales development.
3. Research and development
4. General working capital.
The total proceeds of about 14 million dollars are expected to be
distributed in the following manner:
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i) APS and APS Wireless Technology 2,500,000
ii) Interactive Radio Corporation 6,500,000
iii) Internet Businesses
- Software development 500,000
- Casino gaming 1,000,000
- MaXum Bingo 750,000
- Investor News Web 750,000
iv) General working capital 500,000
v) Reserve for future acquisitions 1,500,000
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The Registrant before June 1998 had no operations. For the period from
June 1998 to December 31, 1998, the Registrant has incurred losses of
$1,572,812. Of this loss, $1,250,000 was a referral fee that was paid in stock.
The balance was the actual cash and related to development cost expenses
normally associated with start up companies. This money has helped the
Registrant set the groundwork for the acquisitions made in 1999. Assets in 1998
have gone from $768,798 to $1,556,505 for the nine months ended September 30,
1999. The net loss for the eleven months
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ended November 30, 1999 was $3,227,542 of which $2,381,406 was funded through
loans from directors and/or shareholders and involved mostly stock that was used
to pay for certain services performed on behalf of the Registrant. The stock
involved was owned by the individuals not the Registrant. In October 1999, the
Registrant reimbursed restricted stock back to the individuals involved.
The Registrant projects that starting in early 2000 that it should
start generating revenues. The Registrant expects that the Internet Casino site
should start operations in early 2000. Additionally, the Registrant has already
sold 4 additional sub-licenses of its own next generation software that the
Registrant is currently developing with Fairwind Technologies Ltd. and its
wholly-owned subsidiary, Cyberweb Systems Inc. for a total consideration of
$1,200,000. This revenue will also be paid to the Registrant in early 2000 as a
result of activating the Casino website. The Registrant expects to sell at least
50 such sub-licences over the course of the next 18 to 24 months.
Propriety Rights
The Registrant and its subsidiaries rely on a combination of copyright,
trade secrets and trademark laws, and non-disclosure and other contractual
provisions to protect their various proprietary products and technology. These
safeguards may not prevent competitors from imitating the Registrant's products
and services, especially in foreign countries where legal protection of
intellectual property may not be as strong or consistent as in the United
States.
Because the Registrant's business segments are characterized by rapid
technological change, the Registrant believes that factors such as the
technological and creative skills of its personnel, name recognition, market
penetration and reliable customer service and support are more important to
establishing and maintaining a competitive position in the future than the
various legal protections of its proprietary developments. However, the
Registrant will strive based on its research and development efforts to improve
existing technologies and develop new ones to keep it ahead of its competitors
in the future.
The Registrant believes that its proprietary rights do not infringe on
the proprietary rights of third parties. There is no assurance however, that
third parties will not assert such infringement by the Registrant with respect
to current or future products, software, trade names or services. Any such
claim, with or without merit, could be time consuming, resulting in costly
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litigation and cause product release delays, and might require the Registrant to
enter into royalty or licensing agreements or cease distribution of certain
products or services. Such royalty or licensing agreements, if required, may not
be available on terms acceptable to the Registrant.
The Registrant and its subsidiaries presently have some patents with
respect to their proprietary technologies. On the products that have not been
patented the Registrant and its subsidiaries currently rely upon copyright and
trademark laws, trade secrets, confidentiality procedures and contractual
provisions to protect their proprietary products. All of these afford only
limited protection. Accordingly, there can be no assurance that the Registrant's
measures to protect its current proprietary rights will be adequate to prevent
misappropriation of such rights or that the Registrant's competitors will not
independently develop or patent technologies that are substantially equivalent
or superior to the Registrant's technologies. Additionally, although the
Registrant believes that its products and technologies do not infringe upon the
proprietary rights of any third parties, there can be no assurance that third
parties will not assert infringement claims against the Registrant. Similarly,
infringement claims could be asserted against products and technologies which
the Registrant licenses, or has the rights to us, from third parties. Any such
claims, if proved, could materially and adversely affect the Registrant's
business and results of operations. In addition, though any such claims may
ultimately prove to be without merit, the necessary management attention to, and
legal costs associated with, litigation or other resolution of such claims could
materially and adversely affect the Registrant's business and results of
operations.
Rapid Obsolescence and Technological Change
The market for information technology products and services is
characterized by rapidly changing technology, frequent introductions of new
products and evolving industry standards which result in product obsolescence
and short product life cycles. Accordingly, the Registrant's success is
dependent upon its ability to anticipate technological changes in the industry
and to continually identify, obtain and successfully market new products and
services that satisfy evolving technologies, customer preferences and industry
requirements.
There can be no assurance that competitors will not market products and
services which have perceived advantages over those of the Registrant and its
subsidiaries or which render products and services to be offered by the
Registrant and its subsidiaries obsolete or less marketable.
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Risk Factors
The securities of the Registrant are speculative in nature and involve
a high degree of risk. In addition to the other information contained in this
report, shareholders should carefully consider the following risk factors:
Possible Fluctuations in Future Results
There can be no assurance that the Registrant's projections will be
achieved. There could be delays in development of the products and some of the
products may never be developed in a marketable manner as to produce the
projected revenue sources. The Registrant expects that future results could
fluctuate as a result of factors such as increases in competition, significant
acquisitions, currency fluctuations, political changes, overall domestic and
international economic conditions, and other circumstances that may not be
foreseeable at this time. The Registrant will have no control or influence over
many of these factors.
Effects of Possible Issuance of Preferred Stock
The Registrant's Articles of Incorporation do not presently authorize
the issuance of preferred stock. The rights of the holders of common stock will
be subject to, and may be adversely affected by the rights of the holders of any
preferred stock that may be authorized and issued in the future. The Registrant
has no present plans to authorize and issue any shares of preferred stock. Any
issuance of preferred stock would make it more difficult for a third party to
acquire, or could discourage a third party from acquiring, a majority of the
outstanding voting stock of the Registrant.
No Dividends on Common Stock
The Registrant has not previously paid any cash or other dividends on
its common stock and does not anticipate payment of any dividends for the
foreseeable future. The Registrant anticipates retaining its earnings to finance
its operations, growth and expansion.
The Registrant's plan is to seek, investigate, and if such
investigation warrants, acquire an interest in one or more business
opportunities that is complementary to its path involving internet related
technologies presented to it by persons or firms desiring the perceived
advantages of a publicly held corporation. At this time, the Registrant has no
plan, proposal, agreement, understanding, or arrangement to acquire any specific
business or Registrant, other than what has already been disclosed, and the
Registrant has not
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identified any specific business or Registrant for investigation and evaluation.
No member of management or any promoter of the Registrant, or an affiliate of
either, has had any material discussions with any other Registrant other than
the acquisitions made to date and disclosed herein with respect to any
acquisition of that Registrant. The Registrant will not restrict its search to
any specific business, industry, or geographical location, and may participate
in business ventures of virtually any kind or nature if such business is deemed
by management to be complementary to its core existing businesses. Discussion of
the proposed business under this caption and throughout this Registration
Statement is purposefully general and is not meant to be restrictive of the
Registrant's virtually unlimited discretion to search for and enter into
potential business opportunities.
The Registrant may seek a business combination or acquisition with a
firm which only recently commenced operations, or a developing Registrant in
need of additional funds to expand into new products or markets or seeking to
develop a new product or service, or an established business which may be
experiencing financial or operating difficulties and needs additional capital
which is perceived to be easier to raise by a public Registrant. In some
instances, a business opportunity may involve acquiring or merging with a
corporation which does not need substantial additional cash but which desires to
establish a public trading market for its common stock. The Registrant may
purchase assets and establish wholly-owned subsidiaries in various businesses or
purchase existing businesses as subsidiaries.
The Registrant anticipates that the selection of an additional business
opportunity in which to participate will be complex and extremely risky. Because
of general economic conditions, rapid technological advances being made in some
industries, and shortages of available capital, management believes that there
are numerous firms seeking the benefits of a publicly-traded corporation. Such
perceived benefits of a publicly traded corporation may include facilitating or
improving the terms on which additional equity financing may be sought,
providing liquidity for the principals of a business, creating a means for
providing incentive stock options or similar benefits to key employees,
providing liquidity (subject to restrictions of applicable statues) for all
shareholders, and other items. Potentially available business opportunities may
occur in many different industries and at various stages of development, all of
which will make the task of comparative investigation and analysis of such
business opportunities extremely difficult and complex.
Management believes that the Registrant may be able to benefit from
the use of "leverage" to acquire a target Registrant. Leveraging a transaction
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involves acquiring a business while incurring significant indebtedness for a
large percentage of the purchase price of that business. Through leveraged
transactions, the Registrant would be required to use less of its available
funds to acquire a target Registrant and, therefore, could commit those funds to
the operations of the business, to combinations with other target companies, or
to other activities. The borrowing involved in a leveraged transaction will
ordinarily be secured by the assets of the acquired business. If that business
is not able to generate sufficient revenues to make payments on the debt
incurred by the Registrant to acquire that business, the lender would be able to
exercise the remedies provided by law or by contract. These leveraging
techniques, while reducing the amount of funds that the Registrant must commit
to acquire a business, may correspondingly increase the risk of loss to the
Registrant. No assurance can be given as to the terms or availability of
financing for any acquisition by the Registrant.
Reporting Requirements May Delay or Preclude Future Acquisitions
Companies subject to Section 13 of the Securities Exchange Act of 1934
(the "Exchange Act") must provide certain information about significant
acquisitions, including certified financial statements for the Registrant
acquired, covering one or two years depending on the relative size of the
acquisition. The time and additional costs that may be incurred by some target
entities to prepare such statements may significantly delay or even preclude the
Registrant from completing an otherwise desirable acquisition. Acquisition
prospects that do not have or are unable to obtain the required audited
statements may not be appropriate for acquisition so long as the reporting
requirements of the 1934 Act are applicable.
Regulation
Although the Registrant will be subject to regulation under the
Securities Exchange Act of 1934, management believes the Registrant will not be
subject to regulation under the Investment Registrant Act of 1940, insofar as
the Registrant will not be engaged in the business of investing or trading in
securities. In the event the Registrant engages in business combinations which
result in the Registrant holding passive investment interests in a number of
entities, the Registrant could be subject to regulation under the Investment
Registrant Act of 1940. In such event, the Registrant would be required to
register as an investment Registrant and could be expected to incur significant
registration and compliance costs. The Registrant has obtained no formal
determination from the Securities and Exchange Commission as to the status of
the Registrant under the
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Investment Registrant Act of 1940 and, would subject the Registrant to material
adverse consequences.
Disadvantages of Blank Check Offering
The Registrant may enter into a future business combination with an
entity that desires to establish a public trading market for its shares. A
target Registrant may attempt to avoid what it deems to be adverse consequences
of undertaking its own public offering by seeking a business combination with
the Registrant. The perceived adverse consequences may include, but are not
limited to, time delays of the registration process, significant expenses to be
incurred in such an offering, loss of voting control to public shareholders, and
the inability or unwillingness to comply with various federal and state
securities laws enacted for the protection of investors. These securities laws
primarily relate to registering securities and full disclosure of the
Registrant's business, management, and financial statements.
Taxation
Federal and state tax consequences will, in all likelihood, be major
considerations in any future business combination the Registrant may undertake.
Typically, these transactions may be structured to result in tax-free treatment
to both companies pursuant to various federal and state tax provisions. The
Registrant intends to structure any business combination so as to minimize the
federal and state tax consequences to both the Registrant and the target entity.
Management cannot assure that a business combination will meet the statutory
requirements for a tax-free reorganization, or that the parties will obtain the
intended tax-free treatment upon a transfer of stock or assets. A non-qualifying
reorganization could result in the imposition of both federal and state taxes,
which may have an adverse effect on both parties to the transaction.
Requirement of Audited Financial Statements May Disqualify Business
Opportunities
Management believes that any potential target Registrant must provide
audited financial statements for review, and for the protection of all parties
to the future business combination. One or more attractive business
opportunities may forego a future business combination with the Registrant,
rather than incur the expenses associated with preparing audited financial
statements.
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Note Regarding Projections and Forward Looking Statements
This statement includes projections of future results and
"forward-looking statements" as that term is defined in Section 27A of the
Securities Act of 1933 as amended (the "Securities Act"), and Section 21E of the
Securities Exchange Act of 1934 as amended (the "Exchange Act"). All statements
that are included in this Registration Statement, other than statements of
historical fact, are forward-looking statements. Although management believes
that the expectations reflected in these forward-looking statements are
reasonable, it can give no assurance that such expectations will prove to have
been correct. Important factors that could cause actual results to differ
materially from the expectations are disclosed in this Statement, including,
without limitation, in conjunction with those forward-looking statements
contained in this Statement
It may be anticipated that any opportunity in which the Registrant
participates will present certain risks. Many of these risks cannot be
adequately identified prior to selection of the specific opportunity, and the
Registrants shareholders must, therefore, depend on the ability of management to
identify and evaluate such risk. In the case of some of the opportunities
available to the Registrant, it may be anticipated that the promoters thereof
have been unable to develop a going concern or that such business is in its
development state in that it has not generated significant revenues from its
principal business activities prior to the Registrant's participation. There is
a risk, even after the Registrant's participation in the activity and the
related expenditure of the Registrant's funds, that the combined enterprises
will still be able to become a going concern or advance beyond the development
stage. Many of the opportunities may involve new and untested product,
processes, or market strategies which may not succeed. Such risks will be
assumed by the Registrant and, therefore, its shareholders.
The investigation of specific business opportunities and the
negotiation, drafting, and execution of relevant agreements, disclosure
documents, and other instruments will require substantial management time and
attention as well as substantial costs for accountants, attorneys, and others.
If a decision is made not to participate in a specific business opportunity the
costs incurred in the related investigation would not be recoverable.
Furthermore, even if an agreement is reached for the participation in a specific
business opportunity, the failure to consummate that transaction may result in
the loss by the Registrant of the related costs incurred.
18
<PAGE> 19
It is anticipated that the Registrant will be in a position to incur
the costs involved in investigating new business opportunities based on the
projected equity injections expected over the next 2 years. However, there is no
certainty that such funds will actually be available as the Registrant is in the
negotiation stages which such individuals and/or entities that have represented
that funds will be available to meet the Registrant's financial needs not only
for seeking of new opportunities but developing the existing businesses already
acquired and the commitment for funds to be advanced in connection with further
development of the new technological products acquired in order to reach
marketability.
Regulation and Taxation
The Investment Registrant Act of 1940 defines an "investment Registrant"
as a company which is or holds itself out as being engaged primarily in the
business of investing, reinvesting or trading securities. While the Registrant
does not intend to engage in such activities, the Registrant may, through
business combinations, obtain and hold a minority interest in a number of
development stage enterprises. The Registrant could be expected to incur
significant registration and compliance costs if required to register under the
Investment Company Act of 1940. Accordingly, management will continue to review
the Registrant's activities from time to time with a view toward reducing the
likelihood the Registrant could be classified as an "investment Registrant".
The Registrant intends to structure a merger or acquisition in such
manner as to minimize Federal and state tax consequences to the Registrant and
to any future target companies.
Item 3: Description of Property
The Registrant at present has no interest in any real property. The
Registrant has just entered into a lease through its wholly-owned subsidiary
Cyberweb Systems Inc. to occupy 10,697 sq. ft. of space on the 5th floor at a
building located at 4400 Dominion Street, Burnaby, British Columbia, Canada. The
lease commences November 1, 1999 and expires August 30, 2002. The lease calls
for per square feet rent of $3.00 for the first six months, $4.50 for the next
six months, and $5.50 thereafter to the end of the lease plus the Registrant's
prorata share of operating costs estimated to be $10.00 per square foot.
19
<PAGE> 20
All leased space is considered adequate for the operation of the
Registrant and its subsidiary, and no difficulties are foreseen in meeting any
future space requirements.
Item 4: Security Ownership of Certain Beneficial Owners and Management
The following table sets forth information as to the shares of common
stock owned as of November 30, 1999.
(i) Each person who in so far as the Registrant has been able to
ascertain beneficially owns more than five percent (5%) of the
outstanding 40,045,660 of the Registrant.
(ii) Each director.
(iii) Each of the officers named in the summary compensation table.
(iv) All of the directors and officers as a group.
Unless otherwise indicated in the footnotes below on the table as
subject to community property laws where applicable, the persons as to whom the
information is given has sole investment power over the shares of common stock
shown as beneficially owned.
<TABLE>
<CAPTION>
Name Number Percent
---- ------ -------
<S> <C> <C>
1. Barrett Sleeman 700,000 1.7%
2. David Naylor 750 .00002%
3. Chris Foster -0- 0%
4. Sak Narwal 14,130,000 35.2%
</TABLE>
Item 5: Directors, Executive Officers, Promoters & Control Persons
<TABLE>
<CAPTION>
Name Age Position Term Since
---- --- -------- ---- -----
<S> <C> <C> <C> <C>
1. Barrett Sleeman 59 President and Director 1 yr 06/98
2. David Naylor 36 Secretary, Treasurer
and Director 1 yr 06/98
</TABLE>
20
<PAGE> 21
<TABLE>
<S> <C> <C> <C> <C>
3. Chris Foster 33 Senior Accountant
and Director 1 yr 06/98
4. Sak Narwal 34 Chief Financial
Officer 1 yr 07/98
</TABLE>
The Registrant's management and board of directors include:
Barrett Sleeman - President & Director - graduated from the Colorado School of
Mines in 1964 and continues to maintain his registration as a Professional
Engineer (P.Eng.). Early in his career, he attended the MBA program at the
University of Western Ontario and subsequently has accumulated over 20 years of
managerial experience. Mr. Sleeman's diverse background includes experience in
many of the various disciplines of engineering including electrical, mechanical,
metallurgical and petroleum refining. He also has extensive exposure to the
financial world including time spent as a financial analyst for Midland Walwyn
(now Merrill Lynch) and a banker in the Oil & Gas Department of the Royal Bank
of Canada. As former President of a several public companies, Mr. Sleeman was
responsible for raising capital for and managing their various projects.
Additionally, he is or has been a director of various other public companies in
the resources and high tech sectors.
David Naylor - Secretary/Treasurer & Director - has a Diploma of Technology in
Financial Management from the British Columbia Institute of Technology and is a
Certified Management Accountant (CMA) entrance exam finalist in the concluding
months of the CMA society's Strategic Leadership Program. For the past ten
years, Mr. Naylor was employed with a major newspaper publisher Pacific Press, a
division of Southam, now owned by Hollinger Inc. He held the positions of
cost/management accountant and assistant controller during that time. His major
responsibilities included working closely with the senior management team to
ensure sound business management practices were implemented.
Sak Narwal - Chief Financial Officer - after studying Commerce (Marketing &
Finance) and Law at the University of British Columbia, he completed a UBC
Professional Program in mortgage brokering and real estate finance within the
Urban Land Economics Faculty. His diverse business experience has extended from
entrepreneurial ventures to corporate management. Subsequent to several
entrepreneurial ventures, Mr. Narwal founded Pentagon Mortgage Investment
Corporation and Pentagon Management Corporation. Through these companies he
raised and managed investment capital and facilitated lending in a variety of
commercial and residential
21
<PAGE> 22
mortgages. For the past 10 years and most recently, Mr. Narwal has focused his
business activities on the financial markets and raising equity capital for both
private and public companies specializing in technology. He has played a key
role in many negotiations leading to strategic business partnerships and
alliances.
Chris Foster - Senior Accountant & Director - completed studies in
Computer Systems and Financial Management at the British Columbia Institute of
Technology and is completing his professional designation as a Certified General
Accountant. Mr. Foster began his financial management and accounting career as
an Accountant for Arcona Health Inc.. Currently, and during the past 4 years, he
has been employed with the public accounting firm Jacobson, Soda and Hosak
Chartered Accountants. This position has given Mr. Foster experience in all
aspects of public accounting including the preparation of financial statements,
audit engagements and client liaison. In this capacity he has also played a key
role in financial system design/development, implementation and maintenance.
Item 6: Executive Compensation
At this time all of the officers and directors who are working for the
Registrant have not been paid any salaries. However, any expenses related
to Registrant business have been reimbursed by the Registrant.
Summary Compensation Table
<TABLE>
<CAPTION>
Expire Expiration
Officer Options % of Total Price Date
------- ------- ---------- ----- ----
<S> <C> <C> <C> <C>
1. Barrett Sleeman -0- -0- -0- n/a
2. David Naylor -0- -0- -0- n/a
3. Chris Foster -0- -0- -0- n/a
</TABLE>
Item 7: Certain Relationships and Related Transactions
There were no transactions since inception (June 1998), or proposed
transaction, to which the Registrant was or is to be a party, in which any
director, executive officer, nominee for directorship, security-holder or
immediate family member had a direct or indirect material interest as defined by
Rule 404 of Regulation S-B.
22
<PAGE> 23
ITEM 8: DESCRIPTION OF SECURITIES
(a) COMMON STOCK: As at November 30, 1999, the Registrant had 40,045,660
shares of common stock outstanding. The Registrant filed May 13, 1998, the
Registrant increased its authorized capital to 50,000,000 common shares and
changed the par value to $.001. In addition the existing issued stock was
exchanged at the rate of 200 shares of new stock for each share of existing
stock and as result 1,000,000 new shares issued. Holders of shares of the common
stock are entitled to one vote for each share on all matters to be voted on by
the stockholders. Holders of common stock have no cumulative voting rights.
Holders of shares of common stock are entitled to share ratably in dividends, if
any, as may be declared from time to time by the Board of Directors in its
discretion, from funds legally available therefor.
In the event of a liquidation, dissolution or winding up of the Registrant,
the holders of shares of common stock are entitled to share pro rata all assets
remaining after payments in full of all liabilities. Holders of common stock
have no preemptive rights to purchase the Registrant's common stock. All of the
outstanding shares that have been issued are fully paid and non-assessable.
(b) PREFERRED STOCK The Registrant does not have any authorized or issued
preferred stock.
PART II
ITEM 1: MARKET PRICE AND DIVIDENDS ON REGISTRANT'S COMMON EQUITY AND OTHER
STOCKHOLDER MATTERS
(a) MARKET INFORMATION: The Registrant's common stock trades on the OTC
Bulletin Board under the symbol OPGS. The Registrant's common stock price at the
close of business on November 30, 1999 was $0.8125 per share.
(b) PRICE RANGE: The following is the range of the high and low bids for
the Registrant's common stock for each quarter within the last two fiscal years
as determined by the over-the-counter market quotations. These quotations
reflect inter-dealer prices, without retail mark-up, mark-down or commission and
may not represent actual transactions.
23
<PAGE> 24
<TABLE>
<CAPTION>
1999 1998
---- ----
QUARTER HIGH BID LOW BID HIGH BID LOW BID
- ------- -------- ------- -------- -------
<S> <C> <C> <C> <C>
March $ 4.50 $ 1.00 -0- -0-
June $2.562 $0.468 -0- -0-
Sept. $3.625 $0.906 $7.50 $0.50
December n/a n/a $5.00 $3.00
</TABLE>
(c) HOLDERS: The Registrant has approximately 500 common stock
shareholders.
(d) DIVIDENDS: The Registrant has never paid a cash dividend. It is the
present policy of the Registrant to retain any extra profits to finance growth
and development of the business. Additionally, to date the Registrant has
sustained losses as a development stage Registrant. Therefore, the Registrant
does not anticipate paying cash dividends on its common stock in the foreseeable
future.
ITEM 2: LEGAL PROCEEDINGS
The Registrant is not involved in legal proceedings that would have a
material adverse effect on the Registrant's financial conditions or results of
its operations.
ITEM 3: CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
The accountant has not resigned, declined to stand for re-election nor has
he been dismissed. The principal accountant's report on the financial statements
for the past year contained no adverse opinion or disclaimer of opinion, nor
were they modified as to uncertainty, audit scope, or accounting principles.
There have been no disagreements with any former accountants on any matter of
accounting principles, financial statement disclosure, or auditing scope or
procedure.
ITEM 4: RECENT SALES OF UNREGISTERED SECURITIES
(a) RECENT SALES: The Registrant had the following stock issuances and
granting of stock options to officers and directors of the Registrant. All such
24
<PAGE> 25
shares were sold by the officers and directors of the Registrant and no
underwriters were utilized.
1. On July 7, 1998 the Registrant completed a private placement and
issued a total of 23,000,000 common shares at a price of $0.001
per share for total proceeds of $23,000 pursuant to a Regulation
D, Rule 504 Offering.
2. On November 10, 1999 the Registrant completed a private placement
with one of its officers for $3,500,000 and issued a total of
6,730,000 shares of restricted stock in exchange for the cash.
The Registrant had the following stock issuances. All of these shares were
also sold by the officers and directors of the Registrant without the use of an
underwriter.
3. On July 31, 1998 the Registrant completed an additional private
placement and issued a total of 70,000 common shares at a price
of $5.00 per share for total proceeds of $350,000 pursuant to
Regulation D, Rule 504.
4. On September 2, 1998 the Registrant completed a third private
placement and issued a total of 50,000 common shares at a price
of $5.00 per share for total proceeds of $250,000 pursuant to
Regulation D, Rule 504.
5. On September 21, 1998 the Registrant completed a fourth private
placement and issued a total of 50,000 common shares at a price
of $5.50 per share for total proceeds of $275,000 pursuant to
Regulation D, Rule 504.
6. On October 6, 1999 the Registrant issued a total of 212,000
shares of common stock at a purchase price of $1.18 per share for
an aggregate price of $250,000 less a commission of $25,000,
pursuant to Regulation D, Rule 504.
7. On October 15, 1999 the Registrant issued a total of 263,000
shares of common stock at a purchase price of $0.95 per share
for an aggregate price of $250,000 less a commission of $25,000
pursuant to Regulation D, Rule 504.
25
<PAGE> 26
8. On November 16, 1999 the Registrant issued a total of 574,700
shares of common stock at a purchase price of $0.87 per share for
an aggregate price of $500,000 less a commission of $25,000,
pursuant to Regulation D, Rule 504.
9. On October 19, 1999 the Registrant completed a share exchange
with DynCom, Inc. whereby the Registrant agreed to issue 200,000
restricted common shares at a price of $3.00 per share for an
aggregate price of $600,000.
10. On October 22, 1999 the Registrant issued a total of 2,431,500 of
restricted common shares to reimburse certain individuals for
stock that they had personally paid out for services rendered by
third parties for a total value of $4,163,904.
11. On July 5, 1999 the Registrant issued 175,000 restricted common
stock in exchange for 100% interest in Cyberweb Systems, Inc. at
a price of $1.0625 per share for an aggregate purchase price of
$185,938.
12. On July 16, 1999 the Registrant issued 250,000 shares restricted
common stock in exchange for various assets of Kaleidoscope
International Ltd. at a price of $1.34375 per share for an
aggregate purchase price of $335,938.
13. On July 16, 1999 the Registrant issued 25,000 restricted common
stock in payment of a referral fee to third parties at a price of
$1.34375 per share for an aggregate cost of $33,594.
14. On October 19, 1999 the Registrant issued 14,460 restricted
common stock to Fairwind Technologies Ltd. as part of the cost of
developing certain software at a price of $2.31 per share for an
aggregate amount of $33,403.
15. On October 19, 1999 the Registrant issued 5,000,000 restricted
common stock in exchange for a 100% interest in Interactive Radio
Corporation at a price of $3.09375 per share at an aggregate
purchase price of $15,463,750.
(b) EXEMPTION FROM REGISTRATION: With respect to the issuance of the
following shares, such issuances were made in reliance on the private
26
<PAGE> 27
placement exemptions provided by Section 4(2) of the Securities Act of 1933 as
amended, (the "Act") and/or SEC Regulation D, Rule 504 of the Act.
The following shares are listed by item number have relied on the above
noted exemptions.
<TABLE>
<S> <C> <C>
Item 4(1) 23,000,000 common shares
Item 4(3) 70,000 common shares
Item 4(4) 50,000 common shares
Item 4(5) 50,000 common shares
Item 4(6) 212,000 common shares
Item 4(7) 263,000 common shares
Item 4(8) 574,700 common shares
</TABLE>
With respect to the following issuance of common shares, the Registrant has
relied on the private placement exemptions provided under the Act.
The following shares are listed by item number have relied on the above
noted exemptions.
<TABLE>
<S> <C> <C>
Item 4(2) 6,730,000 common shares
Item 4(9) 200,000 common shares
Item 4(10) 2,431,500 common shares
Item 4(11) 175,000 common shares
Item 4(12) 250,000 common shares
Item 4(13) 25,000 common shares
Item 4(14) 14,460 common shares
Item 4(15) 5,000,000 common shares
</TABLE>
In each instance, each of the share purchasers had access to sufficient
information regarding the Registrant so as to make an informed investment
decision. More specifically, each purchaser signed a written subscription
agreement with respect to their financial status and investment sophistication
wherein they warranted and represented, among other things, the following:
1. That he or she had the ability to bear economic risks of investing in
the shares of the Registrant.
27
<PAGE> 28
2. That he or she had sufficient knowledge in financial, business, or
investment matters to evaluate the merits and risks of the investment.
3. That he or she had a certain net worth sufficient to meet the
suitability standards of the Registrant.
4. That the Registrant has made available to him or her, his or her
counsel and his or her advisors, the opportunity to ask questions and
that he or she have been given access to any information, documents,
financial statements, books and records relative to the Registrant and
an investment in the shares of the Registrant.
Item 5: Indemnification of Directors and Officers
The Registrant and its affiliates may not be liable to its shareholders for
errors in judgment or other acts or omissions not amounting to intentional
misconduct, fraud, or a knowing violation of the law, since provisions have been
made in the Articles of Incorporation and By-laws limiting such liability. The
Articles of Incorporation and By-laws also provide for indemnification of the
officers and directors of the Registrant in most cases for any liability
suffered by them or arising from their activities as officers and directors of
the Registrant if they were not engaged in intentional misconduct, fraud, or a
knowing violation of the law. Therefore, purchasers of these securities may have
a more limited right of action than they would have except for this limitation
in the Articles of Incorporation and By-laws.
The officers and directors of the Registrant are accountable to the
Registrant as fiduciaries, which means such officers and directors are required
to exercise good faith and integrity in handling the Registrant's affairs. A
shareholder may be able to institute, legal action on behalf of himself and all
others similarly stated shareholders to recover damages where the Registrant has
failed or refused to observe the law.
Shareholders may, subject to applicable rules of civil procedure, be able
to bring a class action or derivative suit to enforce their rights, including
rights under certain federal and state securities laws and regulations.
Shareholders who have suffered losses in connection with the purchase or sale of
their interest in the Registrant in connection with such sale or purchase,
including the misapplication by any such officer or director of the proceeds
from the sale of these securities, may be able to recover such losses from the
Registrant.
28
<PAGE> 29
Insofar as indemnification for liabilities arising under the federal
securities laws may be permitted to directors and controlling persons of the
Registrant, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the law and is, therefore, unenforceable. In the event a demand
for indemnification is made, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the law and will be governed by the final
adjudication of such issue.
PART F/S
The following financial statements are submitted pursuant to the
information required by Item 310 of Regulation S-B:
FINANCIAL STATEMENTS
No: Description
FS-1 Omicron Technologies, Inc. Financial Audited Statements Year
Ended December 31, 1998
FS-2 Omicron Technologies, Inc. Unaudited Interim Non-Consolidated
Financial Statements As At September 30, 1999
FS-3 Omicron Technologies, Inc. Unaudited Non-Consolidated Financial
Statements As At November 30, 1999.
PART III
Item 1. Index to Exhibits.
The exhibits listed and described below in Item 2 are filed herein as part
of this Registration Statement.
29
<PAGE> 30
Item 2. Description of Exhibits.
The following documents are filed herein as Exhibit Numbers 2, 3, 5, 6 and
7 as required by Part III of Form 1-A:
Exhibit No. Description
----------- -----------
2 Charter and By-Laws
2.1 Articles of Incorporation of All Nations Catering, Inc.
2.2 Articles of Amendment to All Nations Catering, Inc.
2.3 Articles of Amendment to the Articles of Incorporation of All
Nations Catering, Inc. changing name to Omicron Technology,
Inc.
2.4 By-Laws of Omicron Technologies, Inc. (A Florida Corporation)
2.5 Certificate of Incorporation and Articles of Incorporation of
Cyber-Web Systems Inc.
2.6 Articles of Incorporation of Ursat Communications, Inc., a
Nevada corporation
2.7 Certificate of Amendment of Articles of Incorporation of Ursat
Communications, Inc. changing name to Interactive Radio
Corporation
2.8 Bylaws of Ursat Communications, Inc., a Nevada Corporation
30
<PAGE> 31
3 - NONE INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS
5 - NONE VOTING TRUST AGREEMENTS
6 MATERIAL CONTRACTS
6.1 Memorandum of Understanding/Joint Venture Agreement between
Omicron Technologies, Inc. and Viaspace Technologies LLC
6.2 Addendum to Memorandum of Understanding Dated August 7, 1998
6.3 Website Sale and Internet Casino Access License Agreement
6.4 Purchase Agreement between Omicron Technologies Inc., and
Kaleidoscope International Ltd.
6.5 Agreement between Omicron Technologies Inc. and Fairwind
Technologies Ltd. for Software Development
6.6 Option Acquisition Agreement between Omicron Technologies Inc.
and ViaSpace Technologies, LLC
6.7 Acknowledgment/Agreement between Gary Robinson and Omicron
Technologies, Inc.
6.8 Acknowledgment/Agreement between Sterling Klein and Omicron
Technologies, Inc.
31
<PAGE> 32
6.9 Share Exchange Agreement between DynCom Inc. and Omicron
Technologies, Inc.
6.10 Merger Agreement by and among Omicron Technologies, Inc.,
Interactive Radio Corporation, Viaspace Radio, Inc., Viaspace
Technologies LLC, Gary Noreen and Radio Satellite Corporation
6.11 Omicron Technologies, Inc. Share Purchase Agreement
6.12 Common Stock Purchase Agreement
6.13 Common Stock Purchase Warrant (Sample)
7 - NONE MATERIAL FOREIGN PATENTS
27 FINANCIAL DATA SCHEDULE
SIGNATURES
In accordance with Section 12 the Securities and Exchange Act of 1934
the Registrant caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized.
OMICRON TECHNOLOGIES, INC.
DATED: December 22, 1999 BY: /s/ Barrett Sleeman
-----------------------------
BARRETT SLEEMAN
President
32
<PAGE> 33
FINANCIAL STATEMENTS
NO: DESCRIPTION
FS-1 Omicron Technologies, Inc. Financial Audited Statements Year
Ended December 31, 1998
FS-2 Omicron Technologies, Inc. Unaudited Interim Non-Consolidated
Financial Statements As At September 30, 1999
FS-3 Omicron Technologies, Inc. Unaudited Non-Consolidated
Financial Statements As At November 30, 1999.
<PAGE> 34
EXHIBIT FS-1
------------
OMICRON TECHNOLOGIES, INC. FINANCIAL
AUDITED STATEMENTS YEAR ENDED DECEMBER 31, 1998
<PAGE> 35
OMICRON TECHNOLOGIES, INC.
(A Development Stage Company)
FINANCIAL STATEMENTS
DECEMBER 31, 1998
MARVIN N. WINICK, B.Sc.,
CHARTERED ACCOUNTANT
<PAGE> 36
MARVIN N. WINICK, B.Sc.,
Chartered Accountant
- --------------------------------------------------------------------------------
16 Julia Street
Thornhill, Ontario
L3T4R9
Tel No. (905) 731-0189
Fax No. (905) 764-3049
AUDITOR'S REPORT
To the Shareholders of
Omicron Technologies, Inc.
- --------------------------------------------------------------------------------
I have audited the consolidated balance sheet of Omicron Technologies, Inc. as
at December 31, 1998 and the statements of operations, stockholders' equity,
deficit and cash flows for the year then ended. These financial statements are
the responsibility of the company's management. My responsibility is to express
an opinion on these financial statements based on my audit.
I conducted my audit in accordance with generally accepted auditing standards.
Those standards require that I plan and perform an audit to obtain reasonable
assurance whether the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by management, as well
as evaluating the overall financial statement presentation.
In my opinion, these financial statements present fairly, in all material
respects, the financial position of the company as at December 31, 1998 and the
results of its operations and its cash flows for the year then ended in
accordance with generally accepted accounting principles.
/s/ Marvin N. Winick
Thornhill, Ontario
November 10, 1999.
<PAGE> 37
OMICRON TECHNOLOGIES, INC.
(A Development Stage Company)
BALANCE SHEET
AS AT DECEMBER 31,1998
================================================================================
<TABLE>
ASSETS
CURRENT
<S> <C>
Cash $ 3,380
Deposit on purchase of option (Note 4) 750,000
================================================================================
753,380
CAPITAL - AT COST
Computer equipment 15,418
================================================================================
$ 768,798
================================================================================
</TABLE>
<PAGE> 38
OMICRON TECHNOLOGIES, INC.
(A Development Stage Company)
BALANCE SHEET
AS AT DECEMBER 31, 1998
================================================================================
<TABLE>
<CAPTION>
LIABILITIES
CURRENT
<S> <C>
Accounts payable and accrued charges $ 44,019
LONG-TERM
Loans payable(Note 5) 1,401,363
================================================================================
1,445,382
================================================================================
STOCKHOLDERS' EQUITY
SHARE CAPITAL(Note 3)
50,000,000 common shares authorized, par value $ 0.001,
24,170,000 common shares issued 24,170
ADDITIONAL PAID-IN CAPITAL 878,830
DEFICIT (1,579,584)
================================================================================
(676,584)
================================================================================
$ 768,798
================================================================================
</TABLE>
<PAGE> 39
OMICRON TECHNOLOGIES, INC.
STATEMENT OF SHAREHOLDERS' EQUITY
FROM INCEPTION(FEBRUARY 2, 1988) TO DECEMBER 31, 1998
================================================================================
<TABLE>
<CAPTION>
DISCOUNT ON
CAPITAL IN SALE OF
COMMON STOCK EXCESS OF COMMON ACCUMULATED
SHARES AMOUNT PAR VALUE STOCK DEFICIT
<S> <C> <C> <C> <C> <C>
February 26, 1988 - issuance of stock
for cash 5,000 $ 1,000 $ 4,000 $ -- $ --
Net loss - February 2, 1988 to
December 31, 1997 -- -- -- -- (6,772)
May 13, 1998 - stock split 200 to 1 995,000 -- -- -- --
July 7, 1998 - private placement 23,000,000 23,000 -- -- --
July 31, 1998 - private placement 70,000 70 349,930 -- --
September 2, 1998 - private placement . 50,000 50 249,950 -- --
September 21, 1998 - private placement 50,000 50 274,950 -- --
Net loss - year ended December 31, 1998 -- -- -- -- (1,572,812)
==============================================================================================================
Balance - December 31, 1998 24,170,000 $24,170 $878,830 -- $(1,579,584)
==============================================================================================================
</TABLE>
<PAGE> 40
OMICRON TECHNOLOGIES, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF EARNINGS
FOR THE YEAR ENDED DECEMBER 31,1998
================================================================================
<TABLE>
<S> <C>
REVENUE $ --
================================================================================
EXPENSES
Referral fee(Note 10) 1,250,000
Consulting fees 73,350
Investor relations 67,000
Management fees 65,000
Travel 32,068
Legal fees 31,461
Printing and reproduction 11,397
Advertising and promotion 11,392
Dues and fees 7,500
Internet costs 6,177
Transfer agent fees 4,838
Postage and courier 3,903
Telecommunications 3,144
Financing costs 1,950
Office and general 1,917
Loan interest 1,633
Bank service charges 82
================================================================================
1,572,812
================================================================================
NET LOSS FOR THE PERIOD (1,572,812)
DEFICIT - BEGINNING OF YEAR (6,772)
================================================================================
DEFICIT - END OF YEAR $ (1,579,584)
================================================================================
Weighted Average Net Loss Per Share $ (0.13)
============
Weighted Average Number of Shares 11,983,334
============
</TABLE>
<PAGE> 41
OMICRON TECHNOLOGIES, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31,1998
================================================================================
<TABLE>
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss for the year $ (1,572,812)
Deposit on purchase of option (750,000)
Increase in accounts payable 42,247
================================================================================
NET CASH USED BY OPERATING ACTIVITIES (2,280,565)
================================================================================
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of computer equipment (15,418)
================================================================================
NET CASH USED BY INVESTING ACTIVITIES (15,418)
================================================================================
CASH FLOWS FROM FINANCING ACTIVITIES
Issuance of common stock 23,170
Loans payable 1,401,363
Capital in excess of par value 874,830
================================================================================
NET CASH PROVIDED FROM FINANCING ACTIVITIES 2,299,363
================================================================================
NET CHANGE IN CASH 3,380
CASH - BEGINNING OF YEAR --
================================================================================
CASH - END OF YEAR $ 3,380
================================================================================
</TABLE>
<PAGE> 42
OMICRON TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
AS AT DECEMBER 31, 1998
- --------------------------------------------------------------------------------
1. HISTORY AND ORGANIZATION
The Company was incorporated on February 2,1988, pursuant to the laws
of the State of Florida under the name of All Nations Catering, Inc.
On June 19,1998 the Company changed its name to Omicron Technologies,
Inc.
On May 20,1998, the Company received clearance for an unpriced
quotation on the OTC Bulletin Board.
2. SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES
Omicron Technologies, Inc. together with its subsidiaries through
acquisition and software development are in the developing stages of
production of various products and services which include "APS" and
"APS" Wireless Technology and internet related services.
The APS technology is based on a new digital and wireless technology
that will be have wide industrial and residential use especially in
connection with digital cameras that will be available in security and
surveillance type applications.
The technology was developed through NASA's Jet Propulsion Laboratory
which was originally created for NASA's space program. The technology
is an electronic "eye" that utilizes amplified pixels or picture
element in a semiconductor chip. The new APS technology shadows the
conventional Charge-Coupled Device (CCD) sensor, which is currently
used in all image devices. Smaller than the CCD, with superior video
imaging capabilities, using approximately 100 times less power than CCD
at about 1/5 of the cost, the APS technology provides a unique
opportunity for the miniaturization of a full motion video camera down
to the size of a microchip.
The Company will focus the use of its CMOS APS digital imaging
technology primarily in the new consumers products sector. These
include products in the car, camera, computer, hand-held devices,
imaging devices, medicine and toy industries.
Omicron's newest venture, MaXum Bingo purchased from Kaleidoscope
International Ltd. Will deliver to bingo players, live, dynamic access
to Bingo wagering via PC or WebTV. MaXum hosts a rich, dynamic graphic
that will provide players with a real sense of action and participation
with no software downloads. MaXum utilizes a sophisticated, robotic
Java camera. MaXum bingo players will have access to real and live
interactive MaXum Bingo from the actual bingo hall.
<PAGE> 43
OMICRON TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
AS AT DECEMBER 31, 1998
- --------------------------------------------------------------------------------
2. SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
The Company has also acquired after the year end, see Note 9, the
licence to use an internet site for the Lucky Eight Casino, the
Company's online casino website targeting Chinese speaking communities
worldwide. The site will also be available in Japanese and Korean, as
well as five other languages. Lucky Eight works in conjunction with
Asian web browsers and operating systems
The Company has also acquired in 1999 Cyberweb Systems, Inc. see Note
9, a private company which specializes in Internet gaming software
development. Cyberweb has an extensive online contact directory for
Asian individuals and businesses. Cyberweb also hosts and designs
Internet websites. Cyberweb has also developed a new full-service
financial information website developed by Cyberweb. The site will
include free realtime quotes on all US and Canadian stocks, as well as
Java chat, COMTEX news and free portfolio tracking that will send
updates via email when a stock price reaches a high or low parameter
set by the user.
MANAGEMENT USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial
statements and footnotes thereto. Actual results may differ from those
estimates.
CAPITAL ASSETS
Computer equipment is stated at cost. No depreciation has been taken in
these financial statements because of the fact that the Company is a
development stage company and as such has no revenues. It has been
established that depreciation will commence when the company has
revenues to match such cost against.
PRODUCT DEVELOPMENT COSTS
Software development costs are required to be capitalized when a
product's technological feasibility has been established by completion
of a working model of the product and ending when a product is
available for general release to customers.
<PAGE> 44
OMICRON TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
AS AT DECEMBER 31, 1998
- --------------------------------------------------------------------------------
2. SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
INTERNAL-USE SOFTWARE
Effective January 1, 1999 the Company will adopt Statement of Position
(SOP) 98-1, "Accounting for the Costs of Computer Software Developed or
Obtained for Internal Use." This standard requires certain direct
development costs associated with internal use software to be to be
capitalized including external direct costs of material and services
and payroll costs for employees devoting time to the software projects.
Costs incurred during the preliminary project stage, as well as for
maintenance and training are expenses as incurred.
EARNINGS OR LOSS PER SHARE
Earnings or loss per share is calculated using the basic weighted
averaged number of common stock outstanding. Net loss per share -
diluted is not presented because the inclusion of common share
equivalents would be anti-dilutive.
INCOME TAXES
The Company has incurred certain operational losses in its development
stage. The tax benefit of such losses has not been reflected in these
financial statements until there is virtual certainty that such losses
can be utilized before they expire for income tax purposes.
FOREIGN CURRENCY TRANSLATION
The Company maintains its books and records in United States Dollars.
Foreign currency transactions are translated using the temporal method.
Under this method, all monetary items are translated into U.S. funds at
the rate of exchange prevailing at the balance sheet date. Non-Monetary
items are translated at historical rates. Transaction gains and losses
are included in the determination of earnings for the year.
BASIS OF PRESENTATION
For these interim financial statements the Company has accounted for
its interest in its wholly-owned subsidiaries at cost. At this time
there has been little or no significant activity in such subsidiaries
as they have just started operations over the last month.
<PAGE> 45
OMICRON TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
AS AT DECEMBER 31,1998
- --------------------------------------------------------------------------------
2. SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
CASH EQUIVALENTS
The Company considers all highly liquid debt instruments with an
original maturity of three months or less to be cash equivalents.
COMPENSATION FOR SERVICES RENDERED FOR STOCK
The Company issued shares for common stock in lieu of services
rendered. The costs of the services are valued according to the term of
relative agreements, market value on the date of obligation, or based
on the requirements of Form S-8, if applicable. The costs of such
services has been charged to operations to the various accounts in
which such services are categorized.
3. SHARE CAPITAL
(i) On February 26,1988, the Company issued 5,000 shares of its
$1.00 par value common stock for services of $5,000.
(ii) On May 13,1998, the company increased its authorized capital
to 50,000,000 common shares and changed the par value to
$0.001. In addition the existing issued stock was exchanged at
the rate of 200 shares of new stock for each share of existing
stock and as result 1,000,000 new shares issued.
(iii) On July 7, 1998 the Company closed a private placement and
issued a total of 23,000,000 common shares at a price of
$0.001 per share for total proceeds of $ 23,000.
(iv) On July 31, 1998 the Company closed an additional private
placement and issued a total of 70,000 common shares at a
price of $5.00 per share for total proceeds of $ 350,000.
(v) On September 2,1998 the Company closed a third private
placement and issued a total of 50,000 common shares at a
price of $5.00 per share for total proceeds of $ 250,000.
(vi) On September 21,1998 the Company closed a fourth private
placement and issued a total of 50,000 common shares at a
price of $5.50 per share for total proceeds of $ 275,000.
<PAGE> 46
OMICRON TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
AS AT DECEMBER 31, 1998
- --------------------------------------------------------------------------------
3. SHARE CAPITAL (CONTINUED)
On January 29, 1999 the Company entered into an agreement with Pannstar
Lines of Las Vegas, Nevada to sell 2,451,500 common shares from
treasury at a price of $ 4.65 per share for a total aggregate price of
$11,399,475. Upon completion of this offering the Company has agreed
to pay a referral fee to Sukhvinder Johal in the amount of 120,000
common shares. This agreement is in effect for a period of one year
upon which time it will become null and void if not completed.
4. DEPOSIT ON PURCHASE OF OPTION
The Company entered into an "Memorandum of Understanding" with a
company, ViaSpace Technologies LLC, a technology incubation company
whose charter is to develop and commercialize new high technologies on
August 7, 1998. ViaSpace has an option to acquire from Caltech the
license for the "APS" and "APS" (Active Pixel Sensor) Technology.
Omicron and ViaSpace were to enter into a joint venture to develop
certain applications relating to the technology. Omicron was to fund
the development of the technology by ViaSpace at an at an estimated
cost of $3,750,000. Omicron had advanced a total of $750,000 in
connection with the funds necessary to develop such applications.
The Company is now in negotiations with ViaSpace with a view to
purchasing 100% of the licence. ViaSpace also owns certain proprietary
rights to other related technologies to which Omicron would like to
obtain. The value of such an acquisition cannot be determined at this
time as negotiations are still continuing.
5. LOANS PAYABLE
Advances for related parties are non-interest bearing(except as noted
below), are unsecured and have no fixed terms of repayment.
These loans(except as noted below) result from the fact that certain
individuals have paid for consulting and/or referral or other such
services with their own stock on behalf of the Company for expediency
purposes with the express knowledge that the Company would replace such
stock with stock issued from the Company.
On October 22, 1999, the individuals involved entered into an agreement
with the Company acknowledging that such stock will be replaced. At
such time that the stock is returned, the loans payable as set out
below will be converted on the books and records of the Company to
share capital
<PAGE> 47
OMICRON TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
AS AT DECEMBER 31, 1998
- --------------------------------------------------------------------------------
5. LOANS PAYABLE (CONTINUED)
Summary of loans payable:
<TABLE>
<S> <C> <C>
Loans payable - for third party services(1) $ 1,314,750
Loans payable - other(2) 19,980
-----------
$ 1,334,730
===========
(1) Sterling Klein $ 77,250
Gary Robinson 1,237,500
-----------
$ 1,314,750
===========
</TABLE>
2. The loan from Gemini Trading a shareholder, bears interest at
the rate of 8% per annum.
6. SUBSEQUENT EVENTS
Cyberweb Systems Inc.
On July 5, 1999, the Company acquired all the outstanding shares of
Cyberweb Systems Inc. a private Canadian company which carries on the
business of developing computer software, hosting and designing
websites and providing computer consulting to other firms. The purchase
price of the acquisition was 175,000 shares of 144 common stock of
Omicron or $185,938.
Kaleidoscope International Ltd.
On July 16, 1999, the Company acquired all the assets of Kaleidoscope
International Ltd., a Belize Corporation consisting of the following:
a) Three Universal Resource Locators;
b) Sony Digital Camera and cabling;
c) Demonstration drivers for Java Camera;
d) MaXuM Bingo html development software and design; and
e) A 300 MH Celeron computer.
<PAGE> 48
OMICRON TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
AS AT DECEMBER 31, 1998
- --------------------------------------------------------------------------------
6. SUBSEQUENT EVENTS
Kaleidoscope International Ltd. (Continued)
The Company exchanged 250,000 shares of restricted 144 stock for the
acquisition. Thus the purchase price in equivalent dollars was
$335,938.
Global Interactive, Ltd.
On June 4, 1999 the Company entered into a licencing agreement with
Global Interactive Ltd., a Nevis Corporation on a non-exclusive basis
to purchase an Internet website which will direct Internet gainers to a
Casino giving the Company the right to process such customer activities
through the Casino. The Company has paid an initial licencing fee of
$45,000 which is non-refundable. The term of the licence is for 3 years
and is automatically renewed annually indefinitely.
Remuneration to the Licensor is as follows on a monthly basis, based on
the net revenue less all applicable fees:
a) up to $500,000 35%
b) $500,000 to $1,000,000 30%
c) over $1,000,000 25%
Fairwind Technologies Ltd.
On September 17, 1999, the Company entered into a software development
agreement with Fairwind Technologies Ltd., a British Columbia
corporation. Fairwind has been engaged to develop "Front-End Product"
and "Back-End Product" technology used by customers on the internet for
which Omicron is acquiring the distribution rights of the Products more
specifically described as follows:
Front-End Product
Front-End Product means computer software developed and owned by
Fairwind comprising the web pages and game client software which
provides the playing of games as follows:
a) single player game with server: video poker, slot machine,
black jack, roulette, and craps;
b) multi-user game with server: black jack, roulette; and
c) multi-player games: poker, roulette, baccarat and black jack.
<PAGE> 49
OMICRON TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
AS AT DECEMBER 31, 1998
- --------------------------------------------------------------------------------
6. SUBSEQUENT EVENTS (CONTINUED)
FAIRWIND TECHNOLOGIES LTD. (CONTINUED)
Back- End Product
Back-End Product means computer software developed by Fairwind
comprising the accounting communications and administration modules
which inter-operate with the Front-End Product
The Company has agreed to pay Fairwind Technologies Ltd., a total of
$548,000 in Canadian funds both in cash and in free trading shares
based on the completion of the development of the Products.
The acquisition price shall be paid as follows:
a) $ 411,000 Canadian by way of monies; and
b) $ 137,000 Canadian by way of issuance of Omicron free trading
stock.
The payment schedule for the above is as follows:
a) $ 123,300 Canadian shall be paid within 3 days of execution of
the Agreement and delivery of 12,050 shares of free trading
stock, and an option to acquire 6,025 shares at the option
price of U.S. $ 2.31 within 30 days.
b) the balance of the purchase price shall be paid within 14 days
after completion of the technology which is scheduled to be
December 15, 1999.
The Conversion Price relating to the common stock is defined in this
Agreement as being the weighted average of the closing trading price of
the shares for the 10 trading days immediately prior to the date of
acceptance of the Products.
If for some reason Omicron cannot deliver free trading stock, then
Omicron may deliver to Fairwind restricted stock whose restriction for
conversion cannot be greater than 1 year and the number of shares
delivered would have to equal 120% of the number of free trading stock
that would have had to be delivered.
<PAGE> 50
OMICRON TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
AS AT DECEMBER 31,1998
- --------------------------------------------------------------------------------
6. SUBSEQUENT EVENTS(CONTINUED)
INVESTMENT IN DYNCOM INC.
On October 19, 1999, the company completed the acquisition of
approximately 15% of a Company called DynCom Inc., a Colorado
corporation. The Company purchased 600,000 shares of DynCom Inc. for
200,000 shares of restricted 144 common stock at a price of $3.00 per
share for a total consideration of $ 600,000 US. Additionally the
Company received stock warrants totaling 600,000 exercisable at $ 1.00
per share.
DynCom Inc. is a company in the business of combining smart device,
biometric, proprietary, and internet/Intranet technologies into
effective and efficient e-solutions, e-applications and e-products.
ACQUISITION OF VIASPACE RADIO, INC. AND RADIO SATELLITE CORPORATION
In October 1999, the Company completed the acquisition of ViaSpace
Radio, Inc. and Radio Satellite Corporation. Both ViaSpace and Radio
were merged into one company called Interactive Radio Corporation.
Omicron paid a total of 5,000,000 shares of restricted 144 common stock
to the shareholders for a total consideration of $15,468,750.
Radio Satellite Corporation owns three patents which combine
navigation, broadcast and two-way communication services to provide
mobile users with e-commerce, e-mail, digital quality music, travel,
security, global positioning and gaming at a relatively low cost. The
initial marketing will be on the automotive, trucking and recreational
vehicle markets.
FINANCING AGREEMENT - ORIENT STAR FINANCE LTD.
On October 5, 1999 the Company completed a financing agreement with
Orientstar Finance Ltd. The total amount to be received under this
agreement is $ 1,000,000 in four equal installments of $ 250,000 each.
The agreement was completed in conjunction with Rule 504 Regulation D
of the Securities Act which allows the company to issue free trading
stock in exchange for cash. The first two installments are exchanged
for shares at 65% of the closing bid on the day the funds are escrowed
while the third and fourth installments are exchanged for stock at 70%
of the closing bid the day the funds are escrowed. Total commissions in
connection with the transaction are 10% and are deducted from each
installment.
7. SALE OF SUB-LICENCES
On September 15, 1999, the Company through its wholly-owned subsidiary
MaXum Entertainment Ltd., a Belize Corporation, sold 4 sublicence
agreements in connection with its internet gaming for a total purchase
price of $ 1,200,000 of which a deposit of $50,557. The balance of the
monies are due when the internet gaming site becomes operational which
is expected to be sometime in January 2000.
<PAGE> 51
OMICRON TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
AS AT DECEMBER 31, 1998
- --------------------------------------------------------------------------------
8. GOING CONCERN CONCEPT.
The Company is a development stage company, and as such is dependent
upon its ability to raise capital through private and public funding.
If this funding is not raised, then there is uncertainty about the
company's ability to continue as a going concern until such time as the
Company commences operations. Such operations are to begin in the first
few months of year 2000.
9. EXECUTIVE COMPENSATION
On June 15, 1998 the Company entered into a consulting agreement with
SIU Financial Corporation, a company owned by Sak Narwal, the CFO of
the Company to provide services to the Company at the rate of $ 120,000
per year or $ 10,000 per month. The monthly amount charged includes
rental of offices, telephone, computer and other related costs paid by
SIU on behalf of Omicron. In the event that the Company is unable to
pay for such services as outlined above monthly, SIU has agreed to
treat such monies as a loan and such loan shall bear interest at the
rate of 8% per annum compounded on an annual basis at December 31.
10. REFERRAL FEE
In August 1998, a referral fee of 1,000,000 shares of common stock was
paid to Kamal Alawas in connection with the option purchase of ViaSpace
Technologies, LLC technology. The equivalent dollar value of the stock
at that time was $ 1.25 per share for a total consideration of
$1,250,000.
<PAGE> 52
EXHIBIT FS-2
OMICRON TECHNOLOGIES, INC.
UNAUDITED INTERIMNON-CONSOLIDATED
FINANCIAL STATEMENTS
AS AT SEPTEMBER 30, 1999
<PAGE> 53
OMICRON TECHNOLOGIES, INC.
(A Development Stage Company)
UNAUDITED INTERIM NON-CONSOLIDATED
FINANCIAL STATEMENTS
SEPTEMBER 30, 1999
MARVIN N. WINICK, B.Sc.,
CHARTERED ACCOUNTANT
<PAGE> 54
MARVIN N. WINICK, B.Sc.,
Chartered Accountant
16 Julia Street
Thornhill, Ontario
L3T4R9
Tel No. (905) 731-0189
Fax No. (905) 764-3049
NOTICE TO READER
I have compiled the non-consolidated interim balance sheet of OMICRON
TECHNOLOGIES, INC. as at September 30, 1999, and the non-consolidated interim
statements of operations, stockholders' equity, deficit and cash flows for the
nine months then ended from information supplied by management.
I have not audited, reviewed or otherwise attempted to verify the accurate or
completeness of such information.
Readers are cautioned that these statements may not be appropriate for their
purposes.
/S/ Marvin N. Winick
- --------------------------------
Marvin N. Winick, B.Sc.,
Chartered Accountant
Thornhill, Ontario
November 15, 1999
<PAGE> 55
OMICRON TECHNOLOGIES, INC.
(A Development Stage Company)
NON-CONSOLIDATED INTERIM BALANCE SHEET
AS AT SEPTEMBER 30,1999
(UNAUDITED)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C>
ASSETS
CURRENT
Cash $ 7,816
Deposit on purchase of option(Note 4) 750,000
- --------------------------------------------------------------------------------
757,816
- --------------------------------------------------------------------------------
INVESTMENTS
Investment in and advances to wholly-owned subsidiaries(Note 5) 310,973
- --------------------------------------------------------------------------------
CAPITAL - AT COST
Demonstration equipment 12,650
Computer equipment 24,918
Computer software 20,000
- --------------------------------------------------------------------------------
57,568
- --------------------------------------------------------------------------------
OTHER - AT COST
Internet and website licenses 345,788
Software development 84,360
- --------------------------------------------------------------------------------
430,148
- --------------------------------------------------------------------------------
$1,556,505
================================================================================
</TABLE>
<PAGE> 56
OMICRON TECHNOLOGIES, INC.
(A Development Stage Company)
NON-CONSOLIDATED INTERIM BALANCE SHEET
AS AT SEPTEMBER 30, 1999
(UNAUDITED)
- -------------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C>
LIABILITIES
CURRENT
Accounts payable and accrued charges $ 217,972
Deposit on acquisition of website license(Note 7) 50,557
- -------------------------------------------------------------------------
268,529
LONG-TERM
Loans payable(Note 6) 4,514,825
- -------------------------------------------------------------------------
4,783,354
- -------------------------------------------------------------------------
STOCKHOLDERS' EQUITY
SHARE CAPITAL(Note 3)
50,000,000 common shares authorized, par value $ 0.001,
24,595,000 common shares issue 24,595
ADDITIONAL PAID-IN CAPITAL 1,400,281
DEFICIT (4,646,491)
- -------------------------------------------------------------------------
(3,221,615)
- -------------------------------------------------------------------------
$ 1,561,739
- -------------------------------------------------------------------------
</TABLE>
<PAGE> 57
OMICRON TECHNOLOGIES, INC.
NON-CONSOLIDATED INTERIM STATEMENT OF STOCKHOLDERS' EQUITY
FROM INCEPTION (FEBRUARY 2,1988) TO SEPTEMBER 30,1999
(UNAUDITED)
<TABLE>
<CAPTION>
Discount on
Capital in Sale of
Common Stock Excess of Common Accumulated
Shares Amount Par Value Stock Deficit
<S> <C> <C> <C> <C> <C>
February 26, 1988 - issuance of stock
for cash 5,000 $ 1,000 $ 4,000 $-- $ --
Net loss - February 2, 1988 to
December 31, 1997 -- -- -- -- (6,772)
May 13, 1998 - stock split 200 to 1 995,000 -- -- -- --
July 7, 1998 - private placement 23,000,000 23,000 -- -- --
July 31, 1998 - private placement 70,000 70 349,930 -- --
September 2, 1998 - private placement 50,000 50 249,950 -- --
September 21, 1998 - private placement 50,000 50 274,950 -- --
Net loss - year ended December 31, 1998 -- -- -- -- (1,572,812)
----------------------------------------------------------------------------
Balance - December 31, 1998 24,170,000 24,170 878,830 -- (1,579,584)
July 5, 1999 - Acquisition of Cyberweb 175,000 175 185,763 -- --
July 16,1999 - Acquisition of Kaleidoscope 250,000 250 335,688 -- --
Net loss - period ended September 30, 1999 -- -- -- -- (3,066,907)
----------------------------------------------------------------------------
Balance - September 30, 1999 24,595,000 $ 24,595 $ 1,400,281 $-- $ (4,646,491)
============================================================================
</TABLE>
<PAGE> 58
OMICRON TECHNOLOGIES, INC.
(A DEVELOPMENT STAGE COMPANY)
NON-CONSOLIDATED INTERIM STATEMENT OF EARNINGS AND DEFICIT
FOR THE NINE MONTHS ENDED SEPTEMBER 30,1999
(UNAUDITED)
<TABLE>
<CAPTION>
<S> <C>
REVENUE $ --
-----------
EXPENSES
Consulting fees 1,484,043
Investor relations 977,615
Website costs 395,341
Management fees(Note 10) 90,000
Professional fees 35,727
Printing and reproduction 16,870
Travel 15,481
Advertising and promotion 14,860
Telecommunications 9,044
Loan interest 7,312
Postage and courier 6,351
Transfer agent fees 5,250
Office and general 5,043
Dues and fees 1,945
Internet costs 1,604
Bank service charges 421
-----------
3,066,907
-----------
NET LOSS FOR THE PERIOD (3,066,907)
DEFICIT - BEGINNING OF PERIOD (1,579,584)
-----------
DEFICIT - END OF PERIOD $ (4,646,491)
-----------
Weighted Average Net Loss Per Share $ (0.13)
===========
Weighted Average Number of Shares Outstanding 24,297,577
===========
</TABLE>
<PAGE> 59
OMICRON TECHNOLOGIES, INC.
(A DEVELOPMENT STAGE COMPANY)
NON-CONSOLIDATED INTERIM STATEMENT OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30,1999
(UNAUDITED)
<TABLE>
<CAPTION>
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss for the year $(3,066,907)
Deposit on acquisition of website 50,557
Increase in accounts payable 102,086
- -- -----------
NET CASH USED BY OPERATING ACTIVITIES (2,914,264)
- -- -----------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of internet and website licenses (345,788)
Software development costs (84,360)
Investment in and advances to non-consolidated subsidiaries (310,973)
Acquisition of demonstration equipment (12,650)
Acquisition of computer software (20,000)
Acquisition of computer equipment (9,500)
- -- -----------
NET CASH USED BY INVESTING ACTIVITIES (783,271)
- -- -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Issuance of common stock 425
Loans payable 3,180,095
Capital in excess of par value 521,451
- -- -----------
NET CASH PROVIDED FROM FINANCING ACTIVITIES 3,701,971
- -- -----------
NET CHANGE IN CASH 4,436
CASH - BEGINNING OF PERIOD 3,380
- -- -----------
CASH - END OF PERIOD $ 7,816
= ===========
</TABLE>
<PAGE> 60
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT SEPTEMBER 30, 1999
(UNAUDITED)
1. HISTORY AND ORGANIZATION
The Company was incorporated on February 2,1988, pursuant to the laws
of the State of Florida under the name of All Nations Catering, Inc.
On May 13,1998 the Company changed its name to Omicron Technologies,
Inc.
On May 20,1998, the Company received clearance for an unpriced
quotation on the OTC Bulletin Board.
2. SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES
Omicron Technologies, Inc. together with its subsidiaries through
acquisition and software development are in the developing stages of
production of various products and services which include "APS" and
"APS" Wireless Technology and internet related services.
The APS technology is based on a new digital and wireless technology
that will be have wide industrial and residential use especially in
connection with digital cameras that will be available in security and
surveillance type applications.
The technology was developed through NASA's Jet Propulsion Laboratory
which was originally created for NASA's space program. The technology
is an electronic "eye" that utilizes amplified pixels or picture
element in a semiconductor chip. The new APS technology shadows the
conventional Charge-Coupled Device (CCD) sensor, which is currently
used in all image devices. Smaller than the CCD, with superior video
imaging capabilities, using approximately 100 times less power than CCD
at about 1/5 of the cost, the APS technology provides a unique
opportunity for the miniaturization of a full motion video camera down
to the size of a microchip.
The Company will focus the use of its CMOS APS digital imaging
technology primarily in the new consumers products sector. These
include products in the car, camera, computer, hand-held devices,
imaging devices, medicine and toy industries.
Omicron's newest venture, MaXum Bingo purchased from Kaleidoscope
International Ltd. Will deliver to bingo players, live, dynamic access
to Bingo wagering via PC or WebTV. MaXum hosts a rich, dynamic graphic
that will provide players with a real sense of action and participation
with no software downloads. MaXum utilizes a sophisticated, robotic
Java camera. MaXum bingo players will have access to real and live
interactive MaXum Bingo from the actual bingo hall.
<PAGE> 61
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT SEPTEMBER 30,1999
(UNAUDITED)
2. SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
The Company has also acquired the licence to use an internet site for
the Lucky Eight Casino, the Company's online casino website targeting
Chinese speaking communities worldwide. The site will also be available
in Japanese and Korean, as well as five other languages. Lucky Eight
works in conjunction with Asian web browsers and operating systems
The Company has also acquired in 1999 Cyberweb Systems, Inc. a private
company which specializes in Internet gaming software development.
Cyberweb has an extensive online contact directory for Asian
individuals and businesses. Cyberweb also hosts and designs Internet
websites. Cyberweb has also developed a new full-service financial
information website developed by Cyberweb. The site will include free
real-time quotes on all US and Canadian stocks, as well as Java chat,
COMTEX news and free portfolio tracking that will send updates via
email when a stock price reaches a high or low parameter set by the
user.
MANAGEMENT USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial
statements and footnotes thereto. Actual results may differ from those
estimates.
CAPITAL ASSETS
Computer equipment is stated at cost. No depreciation has been taken in
these financial statements because of the fact that the Company is a
development stage company and as such has no revenues. It has been
established that depreciation will commence when the company has
revenues to match such cost against.
PRODUCT DEVELOPMENT COSTS
Software development costs are required to be capitalized when a
product's technological feasibility has been established by completion
of a working model of the product and ending when a product is
available for general release to customers.
<PAGE> 62
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT SEPTEMBER 30, 1999
(UNAUDITED)
- -------------------------------------------------------------------------------
2. SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
INTERNAL-USE SOFTWARE
Effective January 1, 1999 the Company will adopt Statement of Position
(SOP) 98-1, "Accounting for the Costs of Computer Software Developed or
Obtained for Internal Use." This standard requires certain direct
development costs associated with internal-use software to be to be
capitalized including external direct costs of material and services and
payroll costs for employees devoting time to the software projects. Costs
incurred during the preliminary project stage, as well as for maintenance
and training are expenses as incurred.
EARNINGS OR LOSS PER SHARE
Earnings or loss per share is calculated using the weighted averaged number
of common stock outstanding.
INCOME TAXES
The Company has incurred certain operational losses in its development
stage. The tax benefit of such losses has not been reflected in these
financial statements until there is virtual certainty that such losses can
be utilized before they expire for income tax purposes.
FOREIGN CURRENCY TRANSLATION
The Company maintains its books and records in United States Dollars.
Foreign currency transactions are translated using the temporal method.
Under this method, all monetary items are translated into U.S. funds at the
rate of exchange prevailing at the balance sheet date. Non-Monetary items
are translated at historical rates. Transaction gains and losses are
included in the determination of earnings for the year.
BASIS OF PRESENTATION
For these interim financial statements the Company has accounted for its
interest in its wholly-owned subsidiaries at cost. At this time there has
been little or no significant activity in such subsidiaries as they have
just started operations over the last month.
<PAGE> 63
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT SEPTEMBER 30, 1999
(UNAUDITED)
3. SHARE CAPITAL
(i) On February 26, 1988, the Company issued 5,000 shares of its
$1.00 par value common stock for services of $ 5,000.
(ii) On May 13, 1998, the company increased its authorized capital
to 50,000,000 common shares and changed the par value to
$0.001. In addition the existing issued stock was exchanged at
the rate of 200 shares of new stock for each share of existing
stock and as result 1,000,000 new shares issued.
(iii) On July 7, 1998 the Company closed a private placement and
issued a total of 23,000,000 common shares at a price of
$0.001 per share for total proceeds of $ 23,000.
(iv) On July 31, 1998 the Company closed an additional private
placement and issued a total of 70,000 common shares at a
price of $ 5.00 per share for total proceeds of $ 350,000.
(v) On September 2, 1998 the Company closed a third private
placement and issued a total of 50,000 common shares at a
price of $ 5.00 per share for total proceeds of $ 250,000.
(vi) On September 21, 1998 the Company closed a fourth private
placement and issued a total of 50,000 common shares at a
price of $ 5.50 per share for total proceeds of $ 275,000.
On January 29, 1999, the Company entered into an agreement with
Pannstar Lines of Las Vegas, Nevada, to sell 2,451,500 common shares
from treasury at a price of $ 4.65 per share for a total aggregate
price of $ 11,399,475. Upon completion of this offering the Company has
agreed to pay a referral fee to Sukhvinder Johal in the amount of
120,000 shares. This agreement is in effect for one year and will
become null and void if not completed.
4. DEPOSIT ON PURCHASE OF OPTION
The Company entered into an "Memorandum of Understanding" with a
company, ViaSpace Technologies LLC, a technology incubation company
whose charter is to develop and commercialize new high technologies on
August 7, 1998. ViaSpace has an option to acquire from Caltech the
license for the "APS" and "APS" (Active Pixel Sensor) Technology.
Omicron and ViaSpace were to enter into a joint venture to develop
<PAGE> 64
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT SEPTEMBER 30, 1999
(UNAUDITED)
4. DEPOSIT ON PURCHASE OF OPTION (CONTINUED)
certain applications relating to the technology. Omicron was to fund
the development of the technology by ViaSpace at an at an estimated
cost of $ 3,750,000. Omicron had advanced a total of $ 750,000 in
connection with the funds necessary to develop such applications.
The Company is now in negotiations with ViaSpace with a view to
purchasing 100% of the issued and outstanding shares of ViaSpace.
ViaSpace also owns certain proprietary rights to other related
technologies to which Omicron would like to obtain. The value of such
an acquisition cannot be determined at this time as negotiations are
still continuing.
5. INVESTMENTS
CYBERWEB SYSTEMS INC.
On July 5, 1999, the Company acquired all the outstanding shares of
Cyberweb Systems Inc. a private Canadian company which carries on the
business of developing computer software, hosting and designing
websites and providing computer consulting to other firms. The purchase
price of the acquisition was 175,000 shares of 144 common stock of
Omicron or $ 185,938.
KALEIDOSCOPE INTERNATIONAL LTD.
On July 16, 1999, the Company acquired all the assets of Kaleidoscope
International Ltd., a Belize Corporation consisting of the following:
a) Three Universal Resource Locators;
b) Sony Digital Camera and cabling;
c) Demonstration drivers for Java Camera;
d) MaXuM Bingo html development software and design; and
e) A 300 MH Celeron computer.
The Company exchanged 250,000 shares of restricted 144 stock for the
acquisition. Thus the purchase price in equivalent dollars was
$335,938.
<PAGE> 65
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT SEPTEMBER 30, 1999
(UNAUDITED)
- -------------------------------------------------------------------------------
5. INVESTMENTS (CONTINUED)
Global Interactive, Ltd.
On June 4, 1999 the Company entered into a licencing agreement with Global
Interactive Ltd., a Nevis Corporation on a non-exclusive basis to purchase
an Internet website which will direct Internet gainers to a Casino giving
the Company the right to process such customer activities through the
Casino. The Company has paid an initial licencing fee of $45,000 which is
non-refundable. The term of the licence is for 3 years and is
automatically renewed annually indefinitely.
Remuneration to the Licensor is as follows on a monthly basis, based on
the net revenue less all applicable fees:
<TABLE>
<S> <C>
a) up to $500,000 35%
b) $500,000 to $1,000,000 30%
c) over $1,000,000 25%
</TABLE>
Fairwind Technologies Ltd.
On September 17, 1999, the Company entered into a software development
agreement with Fairwind Technologies Ltd., a British Columbia corporation.
Fairwind has been engaged to develop "Front-End Product" and "Back-End
Product" technology used by customers on the internet for which Omicron is
acquiring the distribution rights of the Products more specifically
described as follows:
Front-End Product
Front-End Product means computer software developed and owned by Fairwind
comprising the web pages and game client software which provides the
playing of games as follows:
a) single player game with server: video poker, slot machine, black
jack, roulette, and craps;
b) multi-user game with server; black jack, roulette; and
c) multi-player games: poker, roulette, baccarat and black jack.
<PAGE> 66
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT SEPTEMBER 30, 1999
(UNAUDITED)
5. INVESTMENTS (CONTINUED)
Fairwind Technologies Ltd. (Continued)
Back-End Product
Back-End Product means computer software developed by Fairwind
comprising the accounting communications and administration modules
which inter-operate with the Front-End Product
The Company has agreed to pay Fairwind Technologies Ltd., a total of $
548,000 in Canadian funds both in cash and in free trading shares based
on the completion of the development of the Products.
The acquisition price shall be paid as follows:
a) $411,000 Canadian by way of monies; and
b) $137,000 Canadian by way of issuance of Omicron free trading
stock.
The payment schedule for the above is as follows:
a) $123,300 Canadian shall be paid within 3 days of execution of
the Agreement and delivery of 12,050 shares of free trading
stock, and an option to acquire 6,025 shares at the option
price of U.S. $2.31 within 30 days.
b) the balance of the purchase price shall be paid within 14 days
after completion of the technology which is scheduled to be
December 15, 1999.
The Conversion Price relating to the common stock is defined in this
Agreement as being the weighted average of the closing trading price of
the shares for the 10 trading days immediately prior to the date of
acceptance of the Products.
<PAGE> 67
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT SEPTEMBER 30,1999
(UNAUDITED)
- --------------------------------------------------------------------------------
5. INVESTMENTS (CONTINUED)
Fairwind Technologies Ltd. (Continued)
If for some reason Omicron cannot deliver free trading stock, then
Omicron may deliver to Fairwind restricted stock whose restriction for
conversion cannot be greater than 1 year and the number of shares
delivered would have to equal 120% of the number of free trading stock
that would have had to be delivered.
6. LOANS PAYABLE
Advances from related parties are non-interest bearing (except as noted
below), are unsecured and have no fixed terms of repayment.
These loans (except as noted below) result from the fact that certain
significant shareholders have paid for consulting and/or referral or
other such services with their own stock for expediency purposes with
the express knowledge that the Company would replace such stock with
stock issued from the Company.
The individuals involved at entered into an agreement with the Company
acknowledging that such stock will be replaced. At such time that the
stock is returned, the loans payable as set out below will be converted
on the books and records of the Company to share capital.
<TABLE>
<S> <C>
Summary of loans payable:
Loans payable - for third party services(1) $ 4,213,905
Loans payable - other(2) 300,920
-----------
$ 4,514,825
===========
</TABLE>
<PAGE> 68
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT SEPTEMBER 30,1999
(UNAUDITED)
- --------------------------------------------------------------------------------
6. LOANS PAYABLE (CONTINUED)
<TABLE>
<CAPTION>
Summary of loans payable:
<S> <C>
(1) Sterling Klein $ 2,451,405
Gary Robinson 1,762,500
-----------
$ 4,213,905
===========
</TABLE>
(2) The loan from Gemini Trading a shareholder, bears interest at
the rate of 8% per annum.
7. SALE OF SUB-LICENCES
On September 15, 1999, the Company through its wholly-owned subsidiary
MaXum Entertainment Ltd., a Belize Corporation, sold 4 sublicence
agreements in connection with its internet gaming for a total purchase
price of $ 1,200,000 of which a deposit of $50,557. The balance of the
monies are due when the internet gaming site becomes operational which
is expected to be sometime in January 2000.
8. GOING CONCERN CONCEPT
The Company is a development stage company, and as such is dependent
upon its ability to raise capital through private and public funding.
If this funding is not raised, then there is uncertainty about the
company's ability to continue as a going concern until such time as the
Company commences operations. Such operations are to begin in the first
few months of year 2000.
9. SUBSEQUENT EVENTS
FINANCING AGREEMENT - ORIENT STAR FINANCE LTD.
On October 5, 1999 the Company completed a financing agreement with
Orientstar Finance Ltd. The total amount to be received under this
agreement is $ 1,000,000 in four equal installments of $ 250,000 each.
The agreement was completed in conjunction with Rule 504 Regulation 0
of the Securities Act which allows the company to issue free trading
stock in exchange for cash. The first two installments are exchanged
for shares at 65% of the closing bid on the day the funds are escrowed
while the third and fourth installments are exchanged for stock at 70%
of the closing bid the day the funds are escrowed. Total commissions in
connection with the transaction are 10% and are deducted from each
installment.
<PAGE> 69
OMICRON TECHNOLOGIES, INC. NOTES TO NON-CONSOLIDATED
INTERIM FINANCIAL STATEMENTS AS AT SEPTEMBER 30,1999
(UNAUDITED)
9. SUBSEQUENT EVENTS (CONTINUED)
Investment in DynCom Inc.
On October 19, 1999, the company completed the acquisition of
approximately 15% of a company called DynCom Inc., a Colorado
corporation. The Company purchased 600,000 shares of DynCom Inc. for
200,000 shares of restricted 144 common stock at a price of $3.00 per
share for a total consideration of $600,000 US. Additionally the
Company received stock warrants totaling 600,000 exercisable at $1.00
per share.
DynCom Inc. is a company in the business of combining smart device,
biometric, proprietary, and internet/Intranet technologies into
effective and efficient e-solutions, e-applications and e-products.
Acquisition of ViaSpace Radio, Inc. and Radio Satellite Corporation
In October 1999, the Company completed the acquisition of ViaSpace
Radio, Inc. and Radio Satellite Corporation. Both ViaSpace and Radio
were merged into one company called Interactive Radio Corporation.
Omicron paid a total of 5,000,000 shares of restricted 144 common stock
to the shareholders for a total consideration of $15,468,750.
Radio Satellite Corporation owns three patents which combine
navigation, broadcast and two-way communication services to provide
mobile users with e-commerce, e-mail, digital quality music, travel,
security, global positioning and gaming at a relatively low cost. The
initial marketing will be on the automotive, trucking and recreational
vehicle markets.
10. EXECUTIVE COMPENSATION
On June 1, 1998 the Company entered into a consulting agreement with
SIU Financial Corporation, a company owned by Sak Narwal, the CFO of
the Company to provide services to the Company at the rate of $120,000
per year or $10,000 per month. The monthly amount charged includes
rental of offices, telephone, computer and other related costs paid by
SIU on behalf of Omicron. In the event that the Company is unable to
pay for such services as outlined above monthly, SIU has agreed to
treat such monies as a loan and such loan shall bear interest at the
rate of 8% per annum compounded on an annual basis at December 31.
<PAGE> 70
EXHIBIT FS-3
OMICRON TECHNOLOGIES, INC. UNAUDITED NON-CONSOLIDATED
FINANCIAL STATEMENTS AS AT NOVEMBER 30, 1999,
<PAGE> 71
OMICRON TECHNOLOGIES, INC.
(A Development Stage Company)
UNAUDITED INTERIM NON-CONSOLIDATED
FINANCIAL STATEMENTS
NOVEMBER 30, 1999
MARVIN N. WINICK, B.Sc.,
CHARTERED ACCOUNTANT
<PAGE> 72
MARVIN N. WINICK, B.Sc.,
Chartered Accountant
16 Julia Street
Thornhill, Ontario
L3T4R9
Tel No. (905) 731-0189
Fax No. (905) 764-3049
NOTICE TO READER
I have compiled the non-consolidated interim balance sheet of OMICRON
TECHNOLOGIES, INC. as at November 30, 1999, and the non-consolidated interim
statements of operations, stockholders' equity, deficit and cash flows for the
nine months then ended from information supplied by management.
I have not audited, reviewed or otherwise attempted to verify the accurate or
completeness of such information.
Readers are cautioned that these statements may not be appropriate for their
purposes.
/s/ Marvin N. Winick
- -----------------------------
Marvin N. Winick, B.Sc.,
Chartered Accountant
Thornhill, Ontario
December 5, 1999
<PAGE> 73
OMICRON TECHNOLOGIES, INC.
(A DEVELOPMENT STAGE COMPANY)
NON-CONSOLIDATED INTERIM BALANCE SHEET
AS AT NOVEMBER 30, 1999
(UNAUDITED)
<TABLE>
<S> <C>
ASSETS
CURRENT
Cash $ 3,535,888
Deposit on purchase of option(Note 4) 750,000
-----------
4,285,888
===========
INVESTMENTS
Investment in and advances to wholly-owned subsidiaries(Note 5) 16,375,688
Investments and advances - other(Note 5) 634,000
-----------
17,009,688
===========
CAPITAL - AT COST
Demonstration equipment 12,650
Computer equipment 30,488
Computer software 20,000
-----------
63,138
===========
OTHER - AT COST
Internet and website licenses(Note 5) 345,788
Software development(Note 5) 132,762
-----------
478,550
===========
$21,837,264
===========
</TABLE>
<PAGE> 74
OMICRON TECHNOLOGIES, INC.
(A Development Stage Company)
NON-CONSOLIDATED INTERIM BALANCE SHEET
AS AT NOVEMBER 30, 1999
(UNAUDITED)
<TABLE>
<S> <C>
LIABILITIES
CURRENT
Accounts payable and accrued charges $ 63,754
Deposit on acquisition of website license(Note 7) 50,557
------------
114,311
LONG-TERM
Loans payable(Note 6) 386,552
------------
500,863
============
STOCKHOLDERS' EQUITY
SHARE CAPITAL(Note 3)
50,000,000 common shares authorized, par value $ 0.001,
40,045,660 common shares issue 40,046
ADDITIONAL PAID-IN CAPITAL 26,103,481
DEFICIT (4,807,126)
------------
21,336,401
============
$ 21,837,264
============
</TABLE>
<PAGE> 75
OMICRON TECHNOLOGIES, INC.
(A Development Stage Company)
NON-CONSOLIDATED INTERIM STATEMENT OF EARNINGS
FOR THE ELEVEN MONTHS ENDED NOVEMBER 30, 1999
(UNAUDITED)
<TABLE>
<S> <C>
REVENUE $ --
------------
EXPENSES
Consulting fees 1,484,043
Investor relations 978,215
Website costs 412,481
Management fees 110,000
Professional fees 78,104
Referral fees 33,594
Advertising and promotion 19,874
Office and general 17,232
Printing and reproduction 16,870
Travel 18,330
Financing costs 15,000
Telecommunications 14,313
Loan interest 9,286
Transfer agent fees 7,331
Postage and courier 6,384
Internet costs 3,884
Dues and fees 1,945
Bank service charges 656
------------
3,227,542
============
NET LOSS FOR THE PERIOD (3,227,542)
DEFICIT - BEGINNING OF PERIOD (1,579,584)
------------
DEFICIT - END OF PERIOD $ (4,807,126)
============
Weighted Average Net Loss Per Share $ (0.13)
============
Weighted Average Number of Shares 25,408,261
============
</TABLE>
<PAGE> 76
OMICRON TECHNOLOGIES, INC.
(A DEVELOPMENT STAGE COMPANY)
NON-CONSOLIDATED INTERIM STATEMENT OF CASH FLOWS
FOR THE ELEVEN MONTHS ENDED NOVEMBER 30, 1999
(UNAUDITED)
<TABLE>
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss for the year $ (3,227,542)
Deposit on acquisition of website 50,557
Increase in accounts payable 19,735
------------
NET CASH USED BY OPERATING ACTIVITIES (3,157,250)
============
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of internet and website licenses (345,788)
Software development costs (132,762)
Investment in and advances to non-consolidated subsidiaries (16,375,688)
Investments and advances - other (634,000)
Acquisition of demonstration equipment (12,650)
Acquisition of computer software (20,000)
Acquisition of computer equipment (15,070)
------------
NET CASH USED BY INVESTING ACTIVITIES (17,535,958)
============
CASH FLOWS FROM FINANCING ACTIVITIES
Issuance of common stock 15,876
Loans payable (1,014,811)
Capital in excess of par value 25,224,651
------------
NET CASH PROVIDED FROM FINANCING ACTIVITIES 24,225,716
============
NET CHANGE IN CASH 3,532,508
============
CASH - BEGINNING OF PERIOD 3,380
============
CASH - END OF PERIOD $ 3,535,888
============
</TABLE>
<PAGE> 77
OMICRON TECHNOLOGIES, INC.
NON-CONSOLIDATED INTERIM STATEMENT OF STOCKHOLDERS' EQUITY
FROM INCEPTION (FEBRUARY 2, 1988) TO NOVEMBER 30, 1999
(UNAUDITED)
<TABLE>
<CAPTION>
DISCOUNT ON
CAPITAL IN SALE OF
COMMON STOCK EXCESS OF COMMON ACCUMULATED
SHARES AMOUNT PAR VALUE STOCK DEFICIT
<S> <C> <C> <C> <C> <C>
February 26, 1988 - issuance of stock
for cash 5,000 $ 1,000 $ 4,000 $-- $ --
Net loss - February 2, 1988 to
December 31, 1997 -- -- -- -- (6,772)
May 13, 1998 - stock split 200 to 1 995,000 -- -- -- --
July 7, 1998 - private placement 23,000,000 23,000 -- -- --
July 31, 1998 - private placement 70,000 70 349,930 -- --
September 2, 1998 - private placement 50,000 50 249,950 -- --
September 21, 1998 - private placement 50,000 50 274,950 -- --
Net loss - year ended December 31, 1998 -- -- -- -- (1,572,812)
========== =========== =========== === ===========
Balance - December 31, 1998 24,170,000 24,170 878,830 -- (1,579,584)
July 5, 1999 - Acquisition of Cyberweb 175,000 175 185,763 -- --
July 16, 1999 - Acquisition of Kaleidoscope 250,000 250 335,688 -- --
October 1, 1999 - re referral fees 25,000 25 33,569 -- --
October 1, 1999 - re Fairwind Technologies 14,460 14 33,388 -- --
October 10, 1999 - private placement 212,000 212 218,788 -- --
October 19, 1999 - DynCom acquisition 200,000 200 599,800 -- --
October 19, 1999 - Interactive Radio
acquisition 5,000,000 5,000 15,463,750 -- --
October 22, 1999 - Reimbursement to
Sterling Klein 1,241,500 1,241 2,450,163 -- --
October 22, 1999 - Reimbursement to
Gary Robinson 1,190,000 1,190 1,711,310 -- --
October 27, 1999 - private placement 263,000 263 224,737 -- --
November 24, 1999 - private placement 574,700 575 474,425 -- --
November 29, 1999 - private placement 6,730,000 6,730 3,493,270 -- --
Net loss - period ended November 30, 1999 -- -- -- -- (3,227,542)
========== =========== =========== === ===========
Balance - November 30, 1999 40,045,660 $ 40,045 $26,103,481 $-- $(4,807,126)
========== =========== =========== === ===========
</TABLE>
<PAGE> 78
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT NOVEMBER 30, 1999
(UNAUDITED)
1. HISTORY AND ORGANIZATION
The Company was incorporated on February 2, 1988, pursuant to the laws
of the State of Florida under the name of All Nations Catering, Inc.
On June 19, 1998 the Company changed its name to Omicron Technologies,
Inc.
On May 20, 1998, the Company received clearance for an unpriced
quotation on the OTC Bulletin Board.
2. SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES
Omicron Technologies, Inc. together with its subsidiaries through
acquisition and software development are in the developing stages of
production of various products and services which include "APS" and
"APS" Wireless Technology and internet related services.
The APS technology is based on a new digital and wireless technology
that will be have wide industrial and residential use especially in
connection with digital cameras that will be available in security
and surveillance type applications.
The technology was developed through NASA's Jet Propulsion Laboratory
which was originally created for NASA's space program. The technology
is an electronic "eye" that utilizes amplified pixels or picture
element in a semiconductor chip. The new APS technology shadows the
conventional Charge-Coupled Device (CCD) sensor, which is currently
used in all image devices. Smaller than the CCD, with superior video
imaging capabilities, using approximately 100 times less power than CCD
at about 1/5 of the cost, the APS technology provides a unique
opportunity for the miniaturization of a full motion video camera down
to the size of a microchip.
The Company will focus the use of its CMOS APS digital imaging
technology primarily in the new consumers products sector. These
include products in the car, camera, computer, hand-held devices,
imaging devices, medicine and toy industries.
Omicron's newest venture, MaXum Bingo purchased from Kaleidoscope
International Ltd. Will deliver to bingo players, live, dynamic access
to Bingo wagering via PC or WebTV. MaXum hosts a rich, dynamic graphic
that will provide players with a real sense of action and
participation with no software downloads. MaXum utilizes a
sophisticated, robotic Java camera. MaXum bingo players will have
access to real and live interactive MaXum Bingo from the actual bingo
hall.
<PAGE> 79
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT NOVEMBER 30, 1999
(UNAUDITED)
2. SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
The Company has also acquired the licence to use an internet site for
the Lucky Eight Casino, the Company's online casino website targeting
Chinese speaking communities worldwide. The site will also be available
in Japanese and Korean, as well as five other languages. Lucky Eight
works in conjunction with Asian web browsers and operating systems.
The Company has also acquired in 1999 Cyberweb Systems, Inc. a private
company which specializes in Internet gaming software development.
Cyberweb has an extensive online contact directory for Asian
individuals and businesses. Cyberweb also hosts and designs Internet
websites. Cyberweb has also developed a new full-service financial
information website developed by Cyberweb. The site will include free
real-time quotes on all US and Canadian stocks, as well as Java chat,
COMTEX news and free portfolio tracking that will send updates via
email when a stock price reaches a high or low parameter set by the
user.
MANAGEMENT USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial
statements and footnotes thereto. Actual results may differ from those
estimates.
CAPITAL ASSETS
Computer equipment is stated at cost. No depreciation has been taken
in these financial statements because of the fact that the Company is
a development stage company and as such has no revenues. It has been
established that depreciation will commence when the company has
revenues to match such cost against.
PRODUCT DEVELOPMENT COSTS
Software development costs are required to be capitalized when a
product's technological feasibility has been established by completion
of a working model of the product and ending when a product is
available for general release to customers.
<PAGE> 80
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT NOVEMBER 30, 1999
(UNAUDITED)
2. SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
INTERNAL-USE SOFTWARE
Effective January 1, 1999 the Company will adopt Statement of Position
(SOP) 98-1, "Accounting for the Costs of Computer Software Developed or
Obtained for Internal Use." This standard requires certain direct
development costs associated with internal-use software to be to be
capitalized including external direct costs of material and services
and payroll costs for employees devoting time to the software projects.
Costs incurred during the preliminary project stage, as well as for
maintenance and training are expenses as incurred.
EARNINGS OR LOSS PER SHARE
Earnings or loss per share is calculated using the basic weighted
averaged number of common stock outstanding. Net loss per share -
diluted is not presented because the inclusion of common share
equivalents would be anti-dilutive.
INCOME TAXES
The Company has incurred certain operational losses in its development
stage. The tax benefit of such losses has not been reflected in these
financial statements until there is virtual certainty that such losses
can be utilized before they expire for income tax purposes.
FOREIGN CURRENCY TRANSLATION
The Company maintains its books and records in United States Dollars.
Foreign currency transactions are translated using the temporal method.
Under this method, all monetary items are translated into U.S. funds at
the rate of exchange prevailing at the balance sheet date. Non-Monetary
items are translated at historical rates. Transaction gains and losses
are included in the determination of earnings for the year.
BASIS OF PRESENTATION
For these interim financial statements the Company has accounted for
its interest in its wholly-owned subsidiaries at cost. At this time
there has been little or no significant activity in such subsidiaries
as they have just started operations over the last month.
<PAGE> 81
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT NOVEMBER 30, 1999
(UNAUDITED)
2. SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES(CONTINUED)
CASH EQUIVALENTS
The Company considers all highly liquid debt instruments with an
original maturity of three months or less to be cash equivalents.
COMPENSATION FOR SERVICES RENDERED FOR STOCK
The Company issued shares for common stock in lieu of services
rendered. The costs of the services are valued according to the term of
relative agreements, market value on the date of obligation, or based
on the requirements of Form S-8, if applicable. The costs of such
services has been charged to operations to the various accounts in
which such services are categorized.
3. SHARE CAPITAL
(i) On February 26, 1988, the Company issued 5,000 shares of its
$1.00 par value common stock for services of $5,000.
(ii) On May 13, 1998, the company increased its authorized capital
to 50,000,000 common shares and changed the par value to
$0.001. In addition the existing issued stock was exchanged at
the rate of 200 shares of new stock for each share of existing
stock and as result 1,000,000 new shares issued.
(iii) On July 7, 1998 the Company closed a private placement and
issued a total of 23,000,000 common shares at a price of
$0.001 per share for total proceeds of $23,000.
(iv) On July 31, 1998 the Company closed an additional private
placement and issued a total of 70,000 common shares at a
price of $5.00 per share for total proceeds of $350,000.
(v) On September 2, 1998 the Company closed a third private
placement and issued a total of 50,000 common shares at a
price of $5.00 per share for total proceeds of $250,000.
(vi) On September 21, 1998 the Company closed a fourth private
placement and issued a total of 50,000 common shares at a
price of $5.50 per share for total proceeds of $275,000.
<PAGE> 82
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT NOVEMBER 30, 1999
(UNAUDITED)
3. SHARE CAPITAL (CONTINUED)
On January 29, 1999, the Company entered into an agreement with
Pannstar Lines of Las Vegas, Nevada, to sell 2,451,500 common shares
from treasury at a price of $4.65 per share for a total aggregate
price of $11,399,475. Upon completion of this offering the Company has
agreed to pay a referral fee to Sukhvinder Johal in the amount of
120,000 shares. This agreement is in effect for one year and will
become null and void if not completed.
On November 10, 1999, the Company entered into an agreement with one of
its senior officers for such officer to purchase 6,730,000 restricted
common shares for an aggregate consideration of $3,500,000. The
agreement was completed on November 29, 1999. Additionally the
agreement called for share purchase warrants of 6,730,000 shares at an
exercise price of $0.52 per share. The option to purchase such shares
expires in November 2002.
4. DEPOSIT ON PURCHASE OF OPTION
The Company entered into an "Memorandum of Understanding" with a
company, ViaSpace Technologies LLC, a technology incubation company
whose charter is to develop and commercialize new high technologies on
August 7, 1998. ViaSpace has an option to acquire from Caltech the
license for the"APS" and "APS" (Active Pixel Sensor) Technology.
Omicron and ViaSpace were to enter into a joint venture to develop
certain applications relating to the technology. Omicron was to fund
the development of the technology by ViaSpace at an estimated cost of
$3,750,000. Omicron had advanced a total of $750,000 in connection with
the funds necessary to develop such applications.
The Company is now in negotiations with ViaSpace with a view to
purchasing 100% of the licence. ViaSpace also owns certain proprietary
rights to other related technologies to which Omicron would like to
obtain. The value of such an acquisition cannot be determined at this
time as negotiations are still continuing.
5. INVESTMENTS
CYBERWEB SYSTEMS INC.
On July 5, 1999, the Company acquired all the outstanding shares of
Cyberweb Systems Inc. a private Canadian company which carries on the
business of developing computer software, hosting and designing
websites and providing computer consulting to other firms. The purchase
price of the acquisition was 175,000 shares of 144 common stock of
Omicron or $185,938.
<PAGE> 83
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT NOVEMBER 30, 1999
(UNAUDITED)
5. INVESTMENTS(CONTINUED)
Kaleidoscope International Ltd.
On July 16, 1999, the Company acquired all the assets of Kaleidoscope
International Ltd., a Belize Corporation consisting of the following:
a) Three Universal Resource Locators;
b) Sony Digital Camera and cabling;
c) Demonstration drivers for Java Camera;
d) MaXuM Bingo html development software and design; and
e) A 300 MH Celeron computer.
The Company exchanged 250,000 shares of restricted 144 stock for the
acquisition. Thus the purchase price in equivalent dollars was
$335,938.
Global Interactive, Ltd.
On June 4, 1999 the Company entered into a licencing agreement with
Global Interactive Ltd., a Nevis Corporation on a non-exclusive basis
to purchase an Internet website which will direct Internet gainers to a
Casino giving the Company the right to process such customer activities
through the Casino. The Company has paid an initial licencing fee of
$45,000 which is non-refundable. The term of the licence is for 3 years
and is automatically renewed annually indefinitely.
Remuneration to the Licensor is as follows on a monthly basis, based on
the net revenue less all applicable fees:
<TABLE>
<S> <C>
a) up to $500,000 35%
b) $500,000 to $1,000,000 30%
c) over $1,000,000 25%
</TABLE>
<PAGE> 84
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT NOVEMBER 30, 1999
(UNAUDITED)
5. INVESTMENTS(CONTINUED)
Fairwind Technologies Ltd.
On September 17, 1999, the Company entered into a software development
agreement with Fairwind Technologies Ltd., a British Columbia
corporation. Fairwind has been engaged to develop "Front-End Product"
and "Back-End Product" technology used by customers on the internet for
which Omicron is acquiring the distribution rights of the Products more
specifically described as follows:
Front-End Product
Front-End Product means computer software developed and owned by
Fairwind comprising the web pages and game client software which
provides the playing of games as follows:
a) single player game with server: video poker, slot machine,
black jack, roulette, and craps;
b) multi-user game with server: black jack, roulette; and
c) multi-player games: poker, roulette, baccarat and black jack.
Back-End Product
Back-End Product means computer software developed by Fairwind
comprising the accounting communications and administration modules
which inter-operate with the Front End Product
The Company has agreed to pay Fairwind Technologies Ltd., a total of
$548,000 in Canadian funds both in cash and in free trading shares
based on the completion of the development of the Products.
The acquisition price shall be paid as follows:
a) $411,000 Canadian by way of monies; and
b) b) $137,000 Canadian by way of issuance of Omicron free
trading stock.
<PAGE> 85
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT NOVEMBER 30,1999
(UNAUDITED)
- -------------------------------------------------------------------------------
5. INVESTMENTS(CONTINUED)
FAIRWIND TECHNOLOGIES LTD.(CONTINUED)
The payment schedule for the above is as follows:
a) $ 123,300 Canadian shall be paid within 3 days of execution of
the Agreement and delivery of 12,050 shares of free trading
stock, and an option to acquire 6,025 shares at the option
price of U.S. $ 2.31 within 30 days.
b) the balance of the purchase price shall be paid within 14 days
after completion of the technology which is scheduled to be
December 15, 1999.
The Conversion Price relating to the common stock is defined in this
Agreement as being the weighted average of the closing trading price
of the shares for the 10 trading days immediately prior to the date of
acceptance of the Products.
If for some reason Omicron cannot deliver free trading stock, then
Omicron may deliver to Fairwind restricted stock whose restriction for
conversion cannot be greater than 1 year and the number of shares
delivered would have to equal 120% of the number of free trading stock
that would have had to be delivered.
INVESTMENT IN DYNCOM INC.
On October 19, 1999, the company completed the acquisition of
approximately 15% of a Company called DynCom Inc., a Colorado
corporation. The Company purchased 600,000 shares of DynCom Inc. for
200,000 shares of restricted 144 common stock at a price of $3.00 per
share for a total consideration of $ 600,000 US. Additionally the
Company received stock warrants totaling 600,000 exercisable at $ 1.00
per share.
DynCom Inc. is a company in the business of combining smart device,
biometric, proprietary, and internet/Intranet technologies into
effective and efficient e-solutions, e-applications and e-products.
ACQUISITION OF VIASPACE RADIO, INC. AND RADIO SATELLITE CORPORATION
In October 1999, the Company completed the acquisition of ViaSpace
Radio, Inc. and Radio Satellite Corporation. Both ViaSpace and Radio
were merged into one company called Interactive Radio Corporation.
Omicron paid a total of 5,000,000 shares of restricted 144 common
stock to the shareholders for a total consideration of $15,468,750.
<PAGE> 86
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT NOVEMBER 30,1999
(UNAUDITED)
- -------------------------------------------------------------------------------
5. INVESTMENTS(CONTINUED)
ACQUISITION OF VIASPACE RADIO, INC. AND RADIO SATELLITE
CORPORATION(CONTINUED)
Radio Satellite Corporation owns three patents which combine
navigation, broadcast and two-way communication services to provide
mobile users with e-commerce, e-mail, digital quality music, travel,
security, global positioning and gaming at a relatively low cost. The
initial marketing will be on the automotive, trucking and recreational
vehicle markets
Summary of Investment and Advances in Wholly-Owned Subsidiaries:
<TABLE>
<CAPTION>
INVESTMENT ADVANCES
---------- --------
<S> <C> <C>
Interactive Radio Corporation $15,468,750 $ 435,000
Cyberweb Systems Inc. 185,938 286,000
</TABLE>
Summary of Investments and Advances - Other
<TABLE>
<CAPTION>
INVESTMENT ADVANCES
---------- --------
<S> <C> <C>
Dyncom, Inc. (13%) $600,000 $ --
Fairwind Technologies Ltd. 34,000
</TABLE>
6. LOANS PAYABLE
Advances from related parties bear interest(except as noted below) at
the rate of 8% per annum compounded annually, are unsecured and have
no fixed terms of repayment.
<TABLE>
<S> <C>
Summary of loans payable:
Loan - SIU Corporation $ 51,333
Loan - Gary Robinson(non- interest bearing) 40,000
Loan - Gemini Trading 294,920
--------
$386,253
========
</TABLE>
<PAGE> 87
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT NOVEMBER 30,1999
(UNAUDITED)
7. SALE OF SUB-LICENCES
On September 15, 1999, the Company through its wholly-owned subsidiary
MaXum Entertainment Ltd., a Belize Corporation, sold 4 sublicence
agreements in connection with its internet gaming for a total purchase
price of $ 1,200,000 of which a deposit of $50,557. The balance of the
monies are due when the internet gaming site becomes operational which
is expected to be sometime in January 2000.
8. GOING CONCERN CONCEPT
The Company is a development stage company, and as such is dependent
upon its ability to raise capital through private and public funding.
If this funding is not raised, then there is uncertainty about the
company's ability to continue as a going concern until such time as the
Company commences operations. Such operations are to begin in the first
few months of year 2000.
9. ADDITIONAL FINANCING
FINANCING AGREEMENT - ORIENT STAR FINANCE LTD.
On October 5, 1999 the Company completed a financing agreement with
Orientstar Finance Ltd. The total amount to be received under this
agreement is $1,000,000 in four equal installments of $250,000 each.
The agreement was completed in conjunction with Rule 504 Regulation D
of the Securities Act which allows the company to issue free trading
stock in exchange for cash. The first two installments are exchanged
for shares at 65% of the closing bid on the day the funds are escrowed
while the third and fourth installments are exchanged for stock at 70%
of the closing bid the day the funds are escrowed. Total commissions in
connection with the transaction are 10% and are deducted from each
installment.
10. EXECUTIVE COMPENSATION
On June 15, 1998 the Company entered into a consulting agreement with
S1U Financial Corporation, a company owned by Sak Narwal, the CFO of
the Company to provide services to the Company at the rate of $120,000
per year or $10,000 per month. The monthly amount charged includes
rental of offices, telephone, computer and other related costs paid by
SIU on behalf of Omicron. In the event that the Company is unable to
pay for such services as outlined above monthly, SIU has agreed to
treat such monies as a loan and such loan shall bear interest at the
rate of 8% per annum compounded on an annual basis at December 31.
<PAGE> 88
OMICRON TECHNOLOGIES, INC.
NOTES TO NON-CONSOLIDATED INTERIM FINANCIAL STATEMENTS
AS AT NOVEMBER 30,1999
(UNAUDITED)
11. SUBSEQUENT EVENTS
The Company is about to file effective December 2, 1999, Articles of
Amendment to increase the authorized share capital to 125,000,000
common shares in order to accommodate future equity investments.
<PAGE> 89
EXHIBITS
Exhibit No. Description
- ---------- -----------
2.1 Articles of Incorporation of All Nations Catering, Inc.
2.2 Articles of Amendment to All Nations Catering, Inc.
2.3 Articles of Amendment to the Articles of Incorporation
of All Nations Catering, Inc. changing name to
Omicron Technology, Inc.
2.4 By-Laws of Omicron Technologies, Inc. (A Florida
Corporation)
2.5 Certificate of Incorporation and Articles of
Incorporation of Cyber-Web Systems Inc.
2.6 Articles of Incorporation of Ursat Communications,
Inc., a Nevada corporation
2.7 Certificate of Amendment of Articles of Incorporation
of Ursat Communications, Inc. changing name to
Interactive Radio Corporation
2.8 Bylaws of Ursat Communications, Inc., a Nevada
Corporation
6.1 Memorandum of Understanding/Joint Venture Agreement
between Omicron Technologies, Inc. and Viaspace
Technologies LLC
<PAGE> 90
6.2 Addendum to Memorandum of Understanding Dated
August 7, 1998
6.3 Website Sale and Internet Casino Access License Agreement
6.4 Purchase Agreement between Omicron Technologies, Inc., and
Kaleidoscope International Ltd.
6.5 Agreement between Omicron Technologies Inc. and Fairwind
Technologies Ltd. for Software Development
6.6 Option Acquisition Agreement between Omicron Technologies
Inc. and Viaspace Technologies, LLC
6.7 Acknowledgement/Agreement between Gary Robinson and Omicron
Technologies, Inc.
6.8 Acknowledgement/Agreement between Sterling Klein and Omicron
Technologies, Inc.
6.9 Share Exchange Agreement between DynCom, Inc. and Omicron
Technologies, Inc.
6.10 Merger Agreement by and among Omicron Technologies, Inc.,
Interactive Radio Corporation, Viaspace Radio, Inc.,
Viaspace Technologies LLC, Gary Noreen and Radio Satellite
Corporation
6.11 Omicron Technologies, Inc. Share Purchase Agreement
<PAGE> 91
6.12 Common Stock Purchase Agreement
6.13 Common Stock Purchase Warrant (Sample)
27 Financial Data Schedule
<PAGE> 1
EXHIBIT 2.1
Articles of Incorporation of All Nations Catering, Inc.
<PAGE> 2
EXHIBIT 2.1
ARTICLES OF INCORPORATION
OF
ALL-NATIONS CATERING, INC.
The undersigned, acting as Incorporator of a corporation under the Florida
General Corporation Act, adopts the following Articles of Incorporation:
ARTICLE I
The name of the corporation is ALL-NATIONS CATERING, INC.
ARTICLE II
The period of its duration is perpetual.
ARTICLE III
The date and time of the commencement of the corporate existence shall be
the date of the filing of these Articles by the Department of State of the State
of Florida.
ARTICLE IV
The purpose of purposes for which the corporation is organized is to engage
in the transaction of any or all lawful business for which the corporation may
be incorporated under the provisions of the Florida General Corporation Act.
ARTICLE V
The aggregate number of shares which the corporation shall have authority
to issue is Seven Thousand Five Hundred (7,500) shares of capital stock. One
Dollar ($1.00) par value.
<PAGE> 3
ARTICLE VI
The number of directors constituting the initial Board of Directors of the
corporation is a minimum of one (1). The number of directors may be increased or
diminished from time to time pursuant to the Bylaws of the corporation but shall
not be less than one. The name and address of the person who is to serve as
director until the first annual meeting of shareholders or until a successor is
elected and shall qualify is:
Mark J. Bryn
c/o Reisman & Bryn
1200 Brickell Avenue
8th Floor
Miami, Florida 33131
ARTICLE VII
The name and address of the incorporator, the initial Registered Agent and
the initial registered office is:
Mark J. Bryn
Reisman & Bryn
1200 Brickell Avenue
8th Floor
Miami, Florida 33131
DATED: January 28, 1988.
IN WITNESS WHEREOF, the undersigned incorporator executed these Articles of
Incorporation this 28 day of January, 1988.
/s/ MARK J. BRYN
------------------------------------
Mark J. Bryn
Incorporator and Initial Registered Agent
<PAGE> 4
STATE OF FLORIDA )
)ss.
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this 28th day of
January, 1988 by Mark J. Bryn.
WITNESS may hand and official seal this 28th day of January, 1988.
/s/ [ILLEGIBLE]
------------------------------------
Notary Public, State of
Florida at Large
My commission expires:
[SEAL]
<PAGE> 5
CERTIFICATE DESIGNATING RESIDENT AGENT [STAMP]
AND REGISTERED OFFICE
In accordance with Section 48.091, Florida Statutes, the following is
submitted:
ALL-NATIONS CATERING INC. desiring to organize under the laws
of the State of Florida, hereby designate Mark J. Bryn as its
registered agent, located at 1200 Brickell Avenue, 8th Floor,
Miami, Florida 33131, to accept service of process.
ACCEPTANCE
Having been named to accept service of process for the above-stated
corporation, the place designated in this capacity. I further agree to comply
with the provisions of all statutes relative to the proper and complete
performance of my duties.
/s/ MARK J. BRYN
------------------------------------
Mark J. Bryn
<PAGE> 1
EXHIBIT 2.2
ARTICLES OF AMENDMENT TO ALL NATIONS CATERING, INC.
<PAGE> 2
EXHIBIT 2.2
ARTICLES OF AMENDMENT TO
ALL-NATIONS CATERING, INC. [STAMP]
THE UNDERSIGNED, being the sole director and president of All-Nations
Catering, Inc., does hereby amend the Articles of Incorporation of All-Nations
Catering, Inc., as follows:
ARTICLE I
CORPORATE NAME
The name of the Corporation shall be All-Nations Catering, Inc.
ARTICLE II
PURPOSE
The Corporation shall be organized for any and all purposes authorized
under the laws of the state of Florida.
ARTICLE III
PERIOD OF EXISTENCE
The period during which the Corporation shall continue is perpetual.
ARTICLE IV
SHARES
The capital stock of this corporation shall consist of 50,000,000
shares at common stock, $.001 par value.
ARTICLE V
PLACE OF BUSINESS
The address of the principal place of business of this corporation in
the State of Florida shall be One Biscayne Tower. Suite 3599, Miami, FL
33131. The Board of Directors may at any time and from time to time move the
principal office of this corporation.
ARTICLE VI
DIRECTORS AND OFFICERS
The business of this corporation shall be managed by its Board of
Directors. The number of such directors shall be not be less than one (1) and,
subject to such minimum may be increased or decreased from time to time in the
manner provided in the By-Laws.
1
<PAGE> 3
ARTICLE VII
DENIAL OF PREEMPTIVE RIGHTS
No shareholder shall have any right to acquire shares or other
securities of the Corporation except to the extent such right may be granted by
an amendment to these Articles of Incorporation or by a resolution of the board
of Directors.
ARTICLE VIII
AMENDMENT OF BYLAWS
Anything in these Articles of Incorporation, the Bylaws, or the Florida
Corporation Act notwithstanding, bylaws shall not be adopted, modified, amended
or repealed by the shareholders of the Corporation except upon the affirmative
vote of a simple majority vote of the holders of all the issued and outstanding
shares of the corporation entitled to vote thereon.
ARTICLE IX
SHAREHOLDERS
9.1. Inspection of Books. The board of directors shall make reasonable
rules to determine at what times and places and under what conditions the books
of the Corporation shall be open to inspection by shareholders or a duly
appointed representative of a shareholder.
9.2 Control Share Acquisition. The provisions relating to any control
share acquisition as contained in Florida Statutes now, or hereinafter amended,
and any successor provision shall not apply to the Corporation.
9.3. Quorum. The holders of shares entitled to one-third of the votes
at a meeting of shareholder's shall constitute a quorum.
9.4. Required Vote. Acts of shareholders shall require the approval of
holders of 50.01% of the outstanding votes of shareholders.
ARTICLE X
LIABILITY AND INDEMNIFICATION OF DIRECTORS AND OFFICERS
To the fullest extent permitted by law, no director or officer of the
Corporation shall be personally liable to the Corporation or its shareholders
for damages for breach of any duty owed to the Corporation or its shareholders.
In addition, the Corporation shall have the power, in its By-Laws or in any
resolution of its stockholders or directors, to undertake to indemnify the
officers and directors of this corporation against any contingency or peril as
may be determined to be in the best interests of this corporation, and in
conjunction therewith, to procure, at this corporation's expense, policies of
insurance.
2
<PAGE> 4
ARTICLES XI
CONTRACTS
No contract or other transaction between this corporation and any
person, firm or corporation shall be affected by the fact that any officer or
director of this corporation is such other party or is, or at some time in the
future becomes, an officer, director or partner of such other contracting party,
or has now or hereafter a direct or indirect interest in such contract.
I hereby certify that the following was adopted by a majority vote of the
shareholders and directors of the corporation on May 11, 1998 and that the
number of votes cast was sufficient for approval.
IN WITNESS WHEREOF, I have hereunto subscribed to and executed this
Amendment to Articles of Incorporation this an May 11, 1998.
/s/ MARK H. BRYN
- ----------------------------------
Mark H. Bryn, Sole Director
The foregoing instrument was acknowledged before me on May 11, 1998, by Mark
J. Bryn, who is personally known to me.
---------------------------------------
Notary Public
My commission expires:
3
<PAGE> 1
EXHIBIT 2.3
ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION
OF ALL NATIONS CATERING, INC. CHANGING NAME
TO OMICRON TECHNOLOGY, INC.
<PAGE> 2
Exhibit 2. 3
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION OF
ALL-NATIONS CATERING, INC.
Pursuant to the provisions of Section 607.1003 of the Florida Business
Corporations Act, ALL-NATIONS CATERING, INC. (the "Corporation") adopts the
following Articles of Amendments to the Articles of Incorporation:
1. Article I of the Articles of Incorporation shall be deleted
and the following Article I shall be inserted in its place:
ARTICLE I
CORPORATE NAME
The name of this corporation shall be OMICRON TECHNOLOGIES, INC.
2. The Amendment was duly adopted by unanimous written consent of
the directors of the Corporation on June 19, 1998 and by the
shareholders owning a majority of the outstanding voting stock
of the corporation and such majority of votes was sufficient
approval.
3. The effective date of these Articles of Amendment is June 26,
1998.
Dated: June 19,1998.
/s/ BARRET SLEEMAN
-------------------------
BARRET SLEEMAN, PRESIDENT
<PAGE> 3
[FLORIDA DEPARTMENT OF STATE LETTERHEAD]
July 13, 1998
THOMAS BRAUN, LEGAL ASSISTANT
VENTURE LAW CORPORATION
688 WEST HASTINGS STREET, SUITE 618
VANCOUVER, BRITISH COLUMBIA, V6B1P-1
Re: Document Number K13481
The Articles of Amendment to the Articles of Incorporation for ALL-NATIONS
CATERING, INC. which changed its name to OMICRON TECHNOLOGIES, INC., a Florida
corporation, were filed on June 29, 1998.
The certification requested is enclosed.
Should you have any question regarding this matter, please telephone
(850)487-6050, the Amendment Filing Section.
Thelma Lewis
Corporate Specialist Supervisor
Division of Corporations Letter Number: 998A00037061
<PAGE> 1
EXHIBIT 2.4
BY-LAWS OF OMICRON TECHNOLOGIES, INC.
(A FLORIDA CORPORATION)
<PAGE> 2
EXHIBIT 2.4
BYLAWS
OF
OMICRON TECHNOLOGIES, INC.
(A FLORIDA CORPORATION)
<PAGE> 3
INDEX
<TABLE>
<S> <C>
ARTICLE ONE - OFFICES
Section 1. Principal Office ....................................................... 1
Section 2. Other Offices .......................................................... 1
ARTICLE TWO - MEETINGS OF SHAREHOLDERS
Section 1. Place ................................................................. 1
Section 2. Time of Annual Meeting ................................................ 1
Section 3. Call of Special Meetings .............................................. 1
Section 4. Conduct of Meetings ................................................... 1
Section 5. Notice and Waiver of Notice ........................................... 2
Section 6. Business and Nominations for Annual and Special Meetings .............. 2
Section 7. Quorum ................................................................ 2
Section 8. Voting Rights Per Share ............................................... 3
Section 9. Voting of Shares ...................................................... 3
Section 10. Proxies ............................................................... 3
Section 11. Shareholder List ...................................................... 4
Section 12. Action Without Meeting ................................................ 4
Section 13. Fixing Record Date .................................................... 5
Section 14. Inspectors and Judges ................................................. 5
Section 15. Voting for Directors .................................................. 5
ARTICLE THREE - DIRECTORS
Section 1. Number; Term; Election; Qualification ................................. 5
Section 2. Resignation; Vacancies, Removal ....................................... 6
Section 3. Powers ................................................................ 6
Section 4. Place of Meetings ..................................................... 6
Section 5. Annual Meetings ....................................................... 6
Section 6. Regular Meetings ...................................................... 6
Section 7. Special Meetings and Notice ........................................... 6
Section 8. Quorum and Required Vote .............................................. 7
Section 9. Action Without Meeting ................................................ 7
Section 10. Conference Telephone or Similar Communications Equipment Meetings ..... 7
Section 11. Committees ............................................................ 7
Section 12. Compensation of Directors ............................................. 8
ARTICLE FOUR - OFFICERS
Section 1. Positions ............................................................. 8
Section 2. Election of Specified Officers by Board ............................... 8
Section 3. Election or Appointment of Other Officers ............................. 8
Section 4. Compensation .......................................................... 8
Section 5. Term; Resignation; Removal; Vacancies ................................. 9
Section 6. Chairman of the Board ................................................. 9
Section 7. Chief Executive Officer ............................................... 9
Section 8. President ............................................................. 9
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
Section 9. Vice Presidents ............................................. 9
Section 10. Secretary ................................................... 10
Section 11. Chief Financial Officer ..................................... 10
Section 12. Treasurer ................................................... 10
Section 13. Other Officers; Employees and Agents ........................ 10
ARTICLE FIVE - CERTIFICATES FOR SHARES
Section 1. Issue of Certificates ....................................... 10
Section 2. Legends for Preferences and Restrictions on Transfer ........ 11
Section 3. Facsimile Signatures ........................................ 11
Section 4. Lost Certificates ........................................... 11
Section 5. Transfer of Shares .......................................... 12
Section 6. Registered Shareholders ..................................... 12
Section 7. Redemption of Control Shares ................................ 12
ARTICLE SIX - GENERAL PROVISIONS
Section 1. Dividends ................................................... 12
Section 2. Reserves .................................................... 12
Section 3. Checks ...................................................... 12
Section 4. Fiscal Year ................................................. 13
Section 6. Seal ........................................................ 13
Section 6. Gender ...................................................... 13
ARTICLE SEVEN - AMENDMENT OF BYLAWS .......................................... 13
</TABLE>
<PAGE> 5
BYLAWS
OF
OMICRON TECHNOLOGIES. INC.
ARTICLE ONE
OFFICES
Section 1. Principal Office. The principal office of Omicron
Technologies, Inc., a Florida corporation (the "Corporation"), shall be located
at such place determined by the Board of Directors of the Corporation (the
"Board of Directors") in accordance with applicable law.
Section 2. Other Offices. The Corporation may also have offices at such
other places, either within or without the State of Florida, as the Board of
Directors may from time to time determine or as the business of the Corporation
may require.
ARTICLE TWO
MEETINGS OF SHAREHOLDERS
Section 1. Place. All annual meetings of shareholders shall be held at
such place, within or without the State of Florida, as may be designated by the
Board of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice thereof. Special meetings of shareholders may be held at such
place, within or without the State of Florida, and at such time as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Time of Annual Meeting. Annual meetings of shareholders
shall be held on such date and at such time fixed, from time to time, by the
Board of Directors, provided, that there shall be an annual meeting held every
calendar year at which the shareholders shall elect a board of directors and
transact such other business as may properly be brought before the meeting.
Section 3. Call of Special Meetings. Special meetings of the
shareholders shall be held if called in accordance with the procedures set forth
in the Corporation's Articles of Incorporation (the "Articles of Incorporation")
for the call of a special meeting of shareholders.
Section 4. Conduct of Meetings. The Chairman of the Board of Directors
(or in his absence, the President, or in his absence, such other designee of the
Chairman of the Board of Directors) shall preside at the annual and special
meetings of shareholders and shall be given full discretion in establishing the
rules and procedures to be followed in conducting the meetings, except as
otherwise provided by law or in these Bylaws.
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Section 5. Notice and Waiver of Notice. Except as otherwise provided by
law, written or printed notice stating the place, date and time of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be delivered not less than ten (10) nor more than sixty
(60) days before the date of the meeting, either personally or by first-class
mail or other legally sufficient means, by or at the direction of the Chairman
of the Board, President, or the persons calling the meeting, to each shareholder
of record entitled to vote at such meeting. If the notice is mailed at least
thirty (30) days before the date of the meeting, it may be done by a class of
United States mail other than first class. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail addressed to the
shareholder at the address appearing on the stock transfer books of the
Corporation, with postage thereon prepaid. If a meeting is adjourned to another
time and/or place, and if an announcement of the adjourned time and/or place is
made at the meeting, it shall not be necessary to give notice of the adjourned
meeting unless the Board of Directors, after adjournment, fixes a new record
date for the adjourned meeting. Whenever any notice is required to be given to
any shareholder, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether signed before, during or after the time of the
meeting stated therein, and delivered to the Corporation for inclusion in the
minutes or filing with the corporate records, shall constitute an effective
waiver of such notice. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the shareholders need be specified in any
written waiver of notice. Attendance of a person at a meeting shall constitute a
waiver of (a) lack of or defective notice of such meeting, unless the person
objects at the beginning to the holding of the meeting or the transacting of
any business at the meeting, or (b) lack of or defective notice of a particular
matter at a meeting that is not within the purpose or purposes described in the
meeting notice, unless the person objects to considering such matter when it is
presented.
Section 6. Business and Nominations for Annual and Special Meetings.
Business transacted at any special meeting shall be confined to the purposes
stated in the notice thereof. At any annual meeting of shareholders, only such
business shall be conducted as shall have been properly brought before the
meeting in accordance with the requirements and procedures set forth in the
Articles of Incorporation. Only such persons who are nominated for election as
directors of the Corporation in accordance with the requirements and procedures
set forth in the Articles of Incorporation shall be eligible for election as
directors of the Corporation.
Section 7. Quorum. Shares entitled to vote as a separate voting group
may take action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. Except as otherwise provided in the Articles of
Incorporation or applicable law, shares representing a majority of the votes
pertaining to outstanding shares which are entitled to be cast on the matter by
the voting group constitute a quorum of that voting group for action on that
matter. If less than a quorum of shares are represented at a meeting, the
holders of a majority of the shares so represented may adjourn the meeting from
time to time. After a quorum has been established at any shareholders' meeting,
the subsequent withdrawal of shareholders, so as to reduce the number of shares
entitled to vote at the meeting below the number required for a quorum, shall
not affect the validity of any action taken at the meeting
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or any adjournment thereof. Once a share is represented for any purpose at a
meeting, it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record date is or
must be set for that adjourned meeting.
Section 8. Voting Rights Per Share. Each outstanding share, regardless
of class, shall be entitled to vote on each matter submitted to a vote at a
meeting of shareholders, except to the extent that the voting rights of the
shares of any class are limited or denied by or pursuant to the Articles of
Incorporation or the Florida Business Corporation Act
Section 9. Voting of Shares. A shareholder may vote at any meeting of
shareholders of the Corporation, either in person or by proxy. Shares standing
in the name of another corporation, domestic or foreign, may be voted by the
officer, agent or proxy designated by the bylaws of such corporate shareholder
or, in the absence of any applicable bylaw, by such person or persons as the
board of directors of the corporate shareholder may designate. In the absence of
any such designation, or, in case of conflicting designation by the corporate
shareholder, the chairman of the board, the president, any vice president, the
secretary and the treasurer of the corporate shareholder, in that order, shall
be presumed to be fully authorized to vote such shares. Shares held by an
administrator, executor, guardian, personal representative, or conservator may
be voted by such person, either in person or by proxy, without a transfer of
such shares into his name. Shares standing in the name of a trustee may be voted
by such person, either in person or by proxy, but no trustee shall be entitled
to vote shares held by such person without a transfer of such shares into his
name or the name of his nominee. Shares held by or under the control of a
receiver, a trustee in bankruptcy proceedings, or an assignee for the benefit of
creditors may be voted by such person without the transfer thereof into his
name. If shares stand of record in the names of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, tenants
by the entirety or otherwise, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary of the Corporation
is given notice to the contrary and is furnished with a copy of the instrument
or order appointing them or creating the relationship wherein it is so provided,
then acts with respect to voting shall have the following effect: (a) if only
one votes, in person or by proxy, his act binds all; (b) if more than one vote,
in person or by proxy, the act of the majority so voting binds all; (c) if more
than one vote, in person or by proxy, but the vote is evenly split on any
particular matter, each faction is entitled to vote the share or shares in
question proportionally; or (d) if the instrument or order so filed shows that
any such tenancy is held in unequal interest, a majority or a vote evenly split
for purposes hereof shall be a majority or a vote evenly split in interest. The
principles of this paragraph shall apply, insofar as possible, to execution of
proxies, waivers, consents, or objections and for the purpose of ascertaining
the presence of a quorum.
Section 10. Proxies. Any shareholder of the Corporation, other person
entitled to vote on behalf of a shareholder pursuant to law, or attorney-in-fact
for such persons may vote the shareholder's shares in person or by proxy. Any
shareholder of the Corporation may appoint a proxy to vote or otherwise act for
such person by signing an appointment form, either personally or by his
attorney-in-fact. An executed telegram or cablegram appearing to have
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been transmitted by such person, or a photographic, photostatic, or equivalent
reproduction of an appointment form, shall be deemed a sufficient appointment
form. An appointment of a proxy is effective when received by the Secretary of
the Corporation (the "Secretary") or such other officer or agent which is
authorized to tabulate votes, and shall be valid for up to 11 months, unless a
longer period is expressly provided in the appointment form. The death or
incapacity of the shareholder appointing a proxy does not affect the right of
the Corporation to accept the proxy's authority unless notice of the death or
incapacity is received by the Secretary or other officer or agent authorized to
tabulate votes before the proxy authority under the appointment is exercised. An
appointment of a proxy is revocable by the shareholder unless the appointment
form conspicuously states that it is irrevocable and the appointment is coupled
with an interest.
Section 1l. Shareholder List. After fixing a record date for a meeting
of shareholders, the Corporation shall prepare an alphabetical list of the names
of all its shareholders who are entitled to notice of the meeting, arranged by
voting group with the address of, and the number and class and series, if any,
of shares held by each. The shareholders' list must be available for inspection
by any shareholder for a period of ten (10) days prior to the meeting or such
shorter time as exists between the record date and the meeting and continuing
through the meeting at the Corporation's principal office, at a place
identified in the meeting notice in the city where the meeting will be held, or
at the office of the Corporation's transfer agent or registrar. Any shareholder
of the Corporation or such person's agent or attorney is entitled on written
demand to inspect the shareholders' list (subject to the requirements of law),
during regular business hours and at his expense, during the period it is
available for inspection. The Corporation shall make the shareholders' list
available at the meeting of shareholders, and any shareholder or agent or
attorney of such shareholder is entitled to inspect the list at any time during
the meeting or any adjournment. The shareholders' list is prima facie evidence
of the identity of shareholders entitled to examine the shareholders' list or to
vote at a meeting of shareholders.
Section 12. Action Without Meeting. Any action required or permitted by
law to be taken at a meeting of shareholders may be taken without a meeting or
notice if a consent, or consents, in writing, setting forth the action so taken,
shall be dated and signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all voting groups and shares entitled to vote
thereon were present and voted with respect to the subject matter thereof, and
such consent shall be delivered to the Corporation, within the period required
by Section 607.0704 of the Florida Business Corporation Act, by delivery to its
principal office in the State of Florida, its principal place of business, the
Secretary or another officer or agent of the Corporation having custody of the
book in which proceedings of meetings of shareholders are recorded. Within ten
(10) days after obtaining such authorization by written consent, notice must be
given to those shareholders who have not consented in writing or who are not
entitled to vote on the action, in accordance with the requirements of Section
607-0704 of the Florida Business Corporation Act.
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Section 13. Fixing Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or entitled to receive payment of any dividend, or in
order to make a determination of shareholders for any other proper purposes, the
Board of Directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than seventy
(70) days, and, in case of a meeting of shareholders, not less than ten (10)
days, before the meeting or action requiring such determination of shareholders.
If no record date is fixed for the determination of shareholders entitled to
notice of or to vote at a meeting of shareholders or the determination of
shareholders entitled to receive payment of a dividend, the date before the day
on which the first notice of the meeting is mailed or the date on which the
resolutions of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this Section, such determination shall
apply to any adjournment thereof, except where the Board of Directors fixes a
new record date for the adjourned meeting.
Section 14. Inspectors and Judges. The Board of Directors in advance of
any meeting may, but need not, appoint one or more inspectors of election or
judges of the vote, as the case may be, to act at the meeting or any adjournment
thereof. If any inspector or inspectors, or judge or judges, are not appointed,
the person presiding at the meeting may, but need not, appoint one or more
inspectors or judges. In case any person who may be appointed as an inspector or
judge fails to appear or act, the vacancy may be filled by the Board of
Directors in advance of the meeting, or at the meeting by the person presiding
thereat. The inspectors or judges, if any, shall determine the number of shares
of stock outstanding and the voting power of each, the shares of stock
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots and consents, hear and determine
all challenges and questions arising in connection with the right to vote, count
and tabulate votes, ballots and consents, determine the result, and do such acts
as are proper to conduct the election or vote with fairness to all shareholders.
On request of the person presiding at the meeting, the inspector or inspectors
or judge or judges, if any, shall make a report in writing, of any challenge,
question or matter determined by him or them, and execute a certificate of any
fact found by him or them.
Section 15. Voting for Directors. Unless otherwise provided in the
Articles of Incorporation, directors shall be elected by a plurality of the
votes cast by the shares entitled to vote in the election at a meeting at which
a quorum is present.
ARTICLE THREE
DIRECTORS
Section 1. Number; Term; Election; Qualification. The number of
directors of the Corporation shall be fixed from time to time, within the limits
specified by the Articles of incorporation, by resolution of the Board of
Directors. Directors shall be elected in the manner
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and hold office for the term as prescribed in the Articles of Incorporation.
Directors must be natural persons who are 18 years of age or older but need not
be residents of the State of Florida, shareholders of the Corporation or
citizens of the United States.
Section 2. Resignation; Vacancies; Removal. A director may resign at
any time by giving written notice to the Board of Directors or the Chairman of
the Board. Such resignation shall take effect at the date of receipt of such
notice or at any later time specified therein; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. In the event the notice of resignation specifies a later effective
date, the Board of Directors may fill the pending vacancy (subject to the
provisions of the Articles of Incorporation) before the effective date if they
provide that the successor does not take office until the effective date.
Director vacancies shall be filled, and directors may be removed, in the manner
prescribed in the Corporation's Articles of Incorporation.
Section 3. Powers. The business and affairs of the Corporation shall be
managed by the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Articles of Incorporation or by these Bylaws directed or required to be
exercised and done by the shareholders.
Section 4. Place of Meetings. Meetings of the Board of Directors,
regular or special, may be held either within or without the State of Florida.
Section 6. Annual Meetings. Unless scheduled for another time by the
Board of Directors, the first meeting of each newly elected Board of Directors
shall be held, without call or notice, immediately following each annual meeting
of shareholders.
Section 6. Regular Meetings. Regular meetings of the Board of Directors
may also be held without notice at such time and at such place as shall from
time to time be determined by the Board of Directors.
Section 7. Special Meetings and Notice. Special meetings of the Board
of Directors may be called by the President or Chairman of the Board and shall
be called by the Secretary on the written request of any two directors. At least
forty-eight (48) hours' prior written notice of the date, time and place of
special meetings of the Board of Directors shall be given to each director.
Except as required by law, neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting. Notices to
directors shall be in writing and delivered to the directors at their addresses
appearing on the books of the Corporation by personal delivery, mail or other
legally sufficient means. Subject to the provisions of the preceding sentence,
notice to directors may also be given by telegram, teletype or other form of
electronic communication. Notice by mail shall be deemed to be given at the time
when the same shall be received. Whenever any notice is required to be given to
any director, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether before, during or after the meeting, shall
constitute an effective waiver of such notice. Attendance of a director at a
meeting shall constitute a waiver of notice of such meeting and a waiver of any
and all
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objections to the place of the meeting, the time of the meeting and the manner
in which it has been called or convened, except when a director states, at the
beginning of the meeting or promptly upon arrival at the meeting, any objection
to the transaction of business because the meeting is not lawfully called or
convened.
Section 8. Quorum and Required Vote. A majority of the prescribed
number of directors determined as provided in the Articles of Incorporation
shall constitute a quorum for the transaction of business and the act of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors, unless a greater number is required
by the Articles of Incorporation. Whenever, for any reason, a vacancy occurs in
the Board of Directors, a quorum shall consist of a majority of the remaining
directors until the vacancy has been filled. If a quorum shall not be present at
any meeting of the Board of Directors, a majority of the directors present
thereat may adjourn the meeting to another time and place, without notice other
then announcement at the time of adjournment. At such adjourned meeting at which
a quorum shall be present, any business may be transacted that might have been
transacted at the meeting as originally notified and called.
Section 9. Action Without Meeting. Any action required or permitted to
be taken at a meeting of the Board of Directors or committee there may be taken
without a meeting if a consent in writing, setting forth the action taken, is
signed by all of the members of the Board of Directors or the committee, as the
case may be, and such consent shall have the same force and effect as a
unanimous vote at a meeting. Action taken under this Section 9 is effective when
the last director signs the consent, unless the consent specifies a different
effective date. A consent signed under this Section 9 shall have the effect of a
meeting vote and may be described as such in any document.
Section l0. Conference Telephone or Similar Communications Equipment
Meetings. Directors and committee members may participate in and hold a meeting
by means of conference telephone or similar communications equipment by means of
which all persons, participating in the meeting can hear each other.
Participation in such a meeting shall constitute presence in person at the
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground the
meeting is not lawfully called or convened.
Section 11. Committees. The Board of Directors, by resolution adopted
by a majority of the whole Board of Directors, may designate from among its
members an executive committee and one or more other committees, each of which,
to the extent provided in such resolution, shall have and may exercise all of
the authority of the Board of Directors in the business and affairs of the
Corporation except where the action of the full Board of Directors is required
by applicable law. Each committee must have two or more members who serve at the
pleasure of the Board of Directors. The Board of Directors, by resolution
adopted in accordance with this Article Three, may designate one or more
directors as alternate members of any committee, who may act in the place and
stead of any absent member or members at any meeting of such committee.
Vacancies in the membership of a committee may be filled only by the Board of
Directors at a regular or special meeting of the Board of Directors. The
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executive committee shall keep regular minutes of its proceedings and report the
same to the board of directors when required. The designation of any such
committee and the delegation thereto of authority shall not operate to relieve
the Board of Directors, or any member thereof, of any responsibility imposed
upon it or such member by law.
Section 12. Compensation of Directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Similarly, members of special or standing committees may
be allowed compensation for attendance at committee meetings or a stated salary
as a committee member and payment of expenses for attending committee meetings.
Directors may receive such other compensation as may be approved by the Board of
Directors.
ARTICLE FOUR
OFFICERS
Section 1. Positions. The officers of the Corporation may consist of a
Chairman of the Board, a Chief Executive Officer, a President, one or more Vice
Presidents (any one or more of whom may be given the additional designation of
rank of Executive Vice President or Senior Vice President), a Secretary, a Chief
Financial Officer and a Treasurer. Any two or more offices may be held by the
same person. Officers other than the Chairman of the Board need not be members
of the Board of Directors. The Chairman of the Board must be a member of the
Board of Directors.
Section 2. Election of Specified Officers by Board. The Board of
Directors at its first meeting after each annual meeting of shareholders shall
elect a Chairman of the Board, a Chief Executive Officer, a President, one or
more Vice Presidents (including any Senior or Executive Vice Presidents), a
Secretary, a Chief Financial Officer and a Treasurer.
Section 3. Election or Appointment of Other Officers. Such other
officers and assistant officers and agents as may be deemed necessary may be
elected or appointed by the Board of Directors, or, unless otherwise specified
herein, appointed by the Chairman of the Board. The Board of Directors shall be
advised of appointments by the Chairman of the Board at or before the next
scheduled Board of Directors meeting.
Section 4. Compensation. The salaries, bonuses and other compensation
of the Chairman of the Board and all officers of the Corporation to be elected
by the Board of Directors pursuant to Section 2 of this Article Four shall be
fixed from time to time by the Board of Directors or pursuant to its direction.
The salaries of all other elected or appointed officers of the Corporation shall
be fixed from time to time by the Chairman of the Board or pursuant to his
direction.
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Section 5. Term; Resignation; Removal; Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualified.
Any officer or agent elected or appointed by the Board of Directors or the
Chairman of the Board may be removed, with or without cause, by the Board of
Directors, but such removal shall be without prejudice to the contract rights,
if any, of the person so removed. Any officer or agent appointed by the Chairman
of the Board pursuant to Section 3 of this Article Four may also be removed from
such office or position by the Board of Directors or the Chairman of the Board,
with or without cause. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise shall be filled by the Board of
Directors, or, in the case of an officer appointed by the Chairman of the Board,
by the Chairman of the Board or the Board of Directors. Any officer of the
Corporation may resign from his respective office or position by delivering
notice to the Corporation, and such resignation shall be effective without
acceptance. Such resignation shall be effective when delivered unless the notice
specifies a later effective date. If a resignation is made effective at a later
date and the Corporation accepts the future effective date, the Board of
Directors may fill the pending vacancy before the effective date if the Board
provides that the successor does not take office until such effective date.
Section 6. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the shareholders and the Board of Directors. The
Chairman of the Board shall also serve as the chairman of any executive
committee.
Section 7. Chief Executive. Subject to the control of the Board of
Directors, the Chief Executive Officer, in conjunction with the President,
shall have general and active management of the business of the Corporation,
shall see that all orders and resolutions of the Board of Directors are carried
into effect and shall have such powers and perform such duties as may be
prescribed by the Board of Directors. In the absence of the Chairman of the
Board or in the event the Board of Directors shall not have designated a
Chairman of the Board, the Chief Executive Officer shall preside at meetings of
the shareholders and the Board of Directors. The Chief Executive Officer shall
also serve as the vice-chairman of any executive committee.
Section 8. President. Subject to the control of the Board of Directors,
the President, in conjunction with the Chief Executive Officer, shall have
general and active management of the business of the Corporation and shall have
such powers and perform such duties as may be prescribed by the Board of
Directors. In the absence of the Chairman of the Board and the Chief Executive
Officer or in the event the Board of Directors shall not have designated a
Chairman of the Board and a Chief Executive Officer shall not have been elected,
the President shall preside at meetings of the shareholders and the Board of
Directors. The President shall also serve as the vice-chairman of any executive
committee.
Section 9. Vice Presidents. The Vice Presidents, in the order of their
seniority, unless otherwise determined by the Board of Directors, shall, in the
absence or disability of the President and the Chief Executive Officer, perform
the duties and exercise the powers of the President. They shall perform such
other duties and have such other powers as the Board of Directors, the Chairman
of the Board or the Chief Executive Officer shall prescribe or as the
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President may from time to time delegate. Executive Vice Presidents shall be
senior to Senior Vice Presidents, and Senior Vice Presidents shall be senior to
all other Vice Presidents,
Section 10. Secretary. The Secretary shall attend all meetings of the
shareholders and all meetings of the Board of Directors and record all the
proceedings of the meetings of the shareholders and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of the shareholders and special meetings of the
Board of Directors and shall keep in safe custody the seal of the Corporation
and, when authorized by the Board of Directors, affix the same to any instrument
requiring it. The Secretary shall perform such other duties as my be prescribed
by the Board of Directors, the Chairman of the Board, the Chief Executive
Officer or the President.
Section 11. Chief Financial Officer. The Chief Financial Officer
shall be responsible for maintaining the financial integrity of the Corporation,
shall prepare the financial plans for the Corporation and shall monitor the
financial performance of the Corporation and its subsidiaries, as well as
performing such other duties as may be prescribed by the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or the President.
Section 12. Treasurer. The Treasurer shall have the custody of
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chairman of the Board and the Board of
Directors at its regular meetings or when the Board of Directors so requires an
account of all his transactions as Treasurer and of the financial condition of
the Corporation. The Treasurer shall perform such other duties as may be
prescribed by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer or the President.
Section 13. Other Officers: Employees and Agents. Each and every other
officer, employee and agent of the Corporation shall possess, and may exercise,
such power and authority, and shall perform such duties, as may from time to
time be assigned to such person by the Board of Directors, the officer so
appointing such person or such officer or officers who may from time to time be
designated by the Board of Directors to exercise such supervisory authority.
ARTICLE FIVE
CERTIFICATES FOR SHARES
Section 1. Issue of Certificates. The shares of the Corporation shall
be represented by certificates, provided that the Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be
10
<PAGE> 15
uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock represented by certificates (and upon request every holder
of uncertificated shares) shall be entitled to have a certificate signed by or
in the name of the Corporation by the Chairman of the Board or a Vice Chairman
of the Board, or the Chief Executive Officer, President or Vice President and by
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation, representing the number of shares registered in
certificate form.
Section 2. Legends for Preferences and Restrictions on Transfer. The
designations, relative rights, preferences and limitations applicable to each
class of shares and the variations in rights, preferences, and limitations
determined for each series within a class (and the authority of the Board of
Directors to determine variations for future series) shall be summarized on the
front or back of each certificate. Alternatively, each certificate may state
conspicuously on its front or back that the Corporation will furnish the
shareholder a full statement of this information on request and without charge.
Every certificate representing shares that are restricted as to the sale,
disposition, or transfer of such shares shall also indicate that such shares are
restricted as to transfer, and there shall be set forth or fairly summarized
upon the certificate, or the certificate shall indicate that the Corporation
will furnish to any shareholder upon request and without charge, a full
statement of such restrictions. If the Corporation issues any shares that are
not registered under the Securities Act of 1933, as amended, or not registered
or qualified under the applicable state securities laws, the transfer of any
such shares shall be restricted substantially in accordance with the following
legend:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 OR UNDER ANY APPLICABLE STATE LAW. THEY MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR PLEDGED WITHOUT (1)
REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE
STATE LAW, OR (2) AT HOLDER'S EXPENSE, AN OPINION (SATISFACTORY
TO THE CORPORATION) OF COUNSEL (SATISFACTORY TO THE CORPORATION)
THAT REGISTRATION IS NOT REQUIRED."
Section 3. Facsimile Signatures. Any and all signatures on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon such
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
Section 4. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost or destroyed. When authorizing such issue of
a new certificate or certificates, the Corporation may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of such lost or
destroyed
11
<PAGE> 16
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost or
destroyed.
Section 5. Transfer of Shares. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a now certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 6. Registered Shareholders. The Corporation shall be entitled
to recognize the exclusive rights of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall not
be bound to recognize any equitable or other claim to or interest in such share
or shares on the part of any other person, whether or not it shall have express
or other notice thereof, except as otherwise provided by the laws of the State
of Florida.
Section 7. Redemption of Control Shares. As provided by the Florida
Business Corporation Act, if a person acquiring control shares of the
Corporation does not file an acquiring person statement with the Corporation,
the Corporation may, at the discretion of the Board of Directors, redeem the
control shares at the fair value thereof at any time during the 60-day period
after the last acquisition of such control shares. If a person acquiring control
shares of the Corporation files an acquiring person statement with the
Corporation, the control shares may be redeemed by the Corporation, at the
discretion of the Board of Directors, only if such shares are not accorded full
voting rights by the shareholders as provided by law.
ARTICLE SIX
GENERAL PROVISIONS
Section 1. Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in
cash, property, stock (including its own shares) or otherwise pursuant to law
and subject to the provisions of the Articles of Incorporation.
Section 2. Reserves. The Board of Directors may by resolution create a
reserve or reserves out of earned surplus for any proper purpose or purposes,
and may abolish any such reserve in the same manner.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
12
<PAGE> 17
SECTION 4. Fiscal Year. The fiscal year of the Corporation shall end
on December 31 of each year, unless otherwise fixed by resolution of the Board
of Directors.
SECTION 5. Seal. The Board of Directors may adopt a corporate seal by
resolution. The corporate seal, if adopted, shall have inscribed thereon the
name and state of incorporation of the Corporation. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
SECTION 6. Gender. All words used In these Bylaws in the masculine
gender shall extend to and shall include the feminine and neutral genders.
ARTICLE SEVEN
AMENDMENT OF BYLAWS
Except as otherwise set forth herein, these Bylaws may be altered,
amended or repealed or new Bylaws may be adopted at any meeting of the Board of
Directors at which a quorum is present, by the affirmative vote of a majority of
the directors present at such meeting.
PRESIDENT'S CERTIFICATE OF ADOPTION OF
THE BYLAWS OF OMICRON TECHNOLOGIES, INC.
I hereby certify:
That I am the duly elected President of Omicron Technologies, Inc., a
Florida corporation;
That the foregoing Bylaws comprising thirteen (13) pages, constitute
the Bylaws of said corporation as duly adopted by the Board of Directors of the
Corporation on June 19th, 1998.
IN WITNESS WHEREOF, I have hereunder signed my name this 19th day of
June 1998.
/s/ Barrett Sleeman
-----------------------------------
Barrett Sleeman, President
13
<PAGE> 1
EXHIBIT 2.5
CERTIFICATE OF INCORPORATION AND ARTICLES OF INCORPORATION
OF CYBER-WEB SYSTEMS INC.
<PAGE> 2
EXHIBIT 2.5
[BRITISH COLUMBIA LOGO]
NUMBER: 588206
COMPANY ACT
CERTIFICATE OF INCORPORATION
I HEREBY CERTIFY that
CYBER-WEB SYSTEMS INC.
has this day been incorporated under the Company Act
ISSUED under my hand at Victoria, British Columbia
on July 05, 1999
/s/ JOHN S. POWELL
JOHN S. POWELL
[SEAL] Registrar of Companies
PROVINCE OF BRITISH COLUMBIA
CANADA
<PAGE> 3
[BRITISH COLUMBIA LETTERHEAD]
FILE NUMBER: 588206
CYBER-WEB SYSTEMS INC.
I HEREBY CERTIFY THAT THE DOCUMENTS ATTACHED HERETO ARE COPIES OF DOCUMENTS
FILED WITH THE REGISTRAR OF COMPANIES ON JULY 05, 1999
/s/ JOHN S. POWELL
------------------------------------
JOHN S. POWELL
REGISTRAR OF COMPANIES
<PAGE> 4
FORM 1
(Section 5)
PROVINCE OF BRITISH COLUMBIA
COMPANY ACT
MEMORANDUM
WE wish to be formed into a company with limited liability under the Company Act
in pursuance of this Memorandum.
1. The name of the company is: CYBER-WEB SYSTEMS INC.
2. The authorized capital of the company consists of:
TEN THOUSAND (10,000) COMMON SHARES WITHOUT PAR VALUE
3. We agree to take the number and kind of shares in the company set opposite
OUR name.
Jaswinder Parmar FIFTY SEVEN COMMON SHARES
84 th. Ave 15020 without par value
Surrey, BC
V3S-8H5
/s/ JASWINDER PARMAR
-------------------------
Ranjit Bal FOURTY THREE COMMON SHARES
5559 Laurel Street without par value
Burnaby, BC
V5G-1N1
/s/ RANJIT BAL
-------------------------
Total Shares Taken:
ONE HUNDRED SHARES WITHOUT
PAR VALUE
Dated the 2 day of June, 1999
<PAGE> 5
CYBER-WEB SYSTEMS INC.
ARTICLES OF INCORPORATION
<PAGE> 6
ARTICLES
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PART ARTICLE SUBJECT
<S> <C> <C>
1 INTERPRETATION
1.1 Definition
1.2 & 1.3 Construction of Words
1.4 Company Act Definitions Applicable
1.5 Table "A" Inapplicable
2 SHARES AND SHARE CERTIFICATES
2.1 Authorized Capital
2.2 Form of Certificate
2.3 Member Entitled to Certificate
2.4 Delivery of Certificate
2.5 Replacement of Lost or Defaced Certificate
2.6 Recognition of Trusts
2.7 Execution of Certificates
2.8 Delivery to Joint Holders
3 ISSUE OF SHARES
3.1 Commencement of Business
3.2 Directors Authorized
3.3 Conditions of Allotment
3.4 Commissions
3.5 Brokerage
3.6 Conditions of Issue
3.7 Price of Shares Without Par Value
3.8 Share Purchase Warrants
4 SHARE TRANSFERS
4.1 Transferability and Instrument of Transfer
4.2 Submission of Instruments of Transfer
4.3 Execution of Instrument of Transfer
4.4 Enquiry as to Title Not Required
4.5 Transfer Fee
4.6 Registrars and Transfer Agents
5 TRANSMISSION OF SHARES
5.1 Personal Representative Recognized on Death
5.2 Persons in Representative Capacity
5.3 By Statute or Court Order
6 ALTERATION OF CAPITAL
6.1 Ordinary Resolution Required
6.2 Increase of Maximum Selling Price
6.3 Articles Apply to New Capital
6.4 Class Meetings of Members
7 PURCHASE OF SHARES
7.1 Company Authorized to Purchase Its Shares
7.2 Directors to Decide on Shares Redeemed
7.3 Sale and Voting of Purchased or Redeemed Shares
8 BORROWING POWERS
8.1 Powers of Directors
8.2 Negotiability of Debt Obligations
8.3 Special Rights on Debt Obligations
8.4 Registers of Debt Obligations and Holders Thereof
</TABLE>
<PAGE> 7
<TABLE>
<S> <C> <C>
8.5 Execution of Debt Obligation Documents
8.6 Delivery of Debentures
9 GENERAL MEETINGS
9.1 Annual General Meetings
9.2 Waiver of Annual General Meeting
9.3 Classification of General Meetings
9.4 Calling of Meetings
9.5 Requisition of General Meetings
9.6 Notice for General Meetings
9.7 Waiver of Notice
9.8 Notice of Special Business at General Meeting
10 PROCEEDINGS
10.1 Special Business
10.2 Quorum
10.3 Requirement of Quorum
10.4 Lack of Quorum
10.5 Chairman
10.6 Alternate Director
10.7 Adjournments
10.8 Decisions by Show of Hands or Poll
10.9 Resolution Need Not Be Seconded
10.10 Casting Vote
10.11 Manner of Taking Poll
10.12 Casting of Votes
10.13 Demand for Poll
10.14 Demand for Poll Not to Prevent Continuance of Meeting
10.15 Retention of Ballots Cast on a Poll
11 VOTES OF MEMBERS
11.1 Number of Votes per Share or Member
11.2 Votes of Persons in Representative Capacity
11.3 Votes by Joint Holders
11.4 Representative of a Corporate Member
11.5 Votes by Committee of a Member
11.6 Appointment by Proxyholders
11.7 Execution of Proxy Instrument
11.8 Qualification of a Proxyholder
11.9 Deposit of Proxy
11.10 Validity of Proxy Vote
11.11 Form of Proxy
12 DIRECTORS
12.1 Responsible for Management
12.2 Number of Directors
12.3 Shane Qualification of Directors
12.4 Remuneration and Expenses of Directors
12.5 Appointment of Attorneys
12.6 Directors Interested in Transactions with Company
12.7 Right to Office and Contract with Company
12.8 Director Acting in Professional Capacity
12.9 Directors Interested in Other Corporate Entities
12.10 Alternate Directors
13 TERMINATION OF DIRECTORSHIP OF DIRECTORS
13.1 Grounds for Termination
</TABLE>
<PAGE> 8
<TABLE>
<S> <C> <C>
14 RETIREMENT AND ELECTION OF DIRECTORS
14.1 Election at Annual General Meetings
14.2 Removal of Directors
14.3 Filling a Casual Vacancy
15 PROCEEDINGS OF DIRECTORS
15.1 Meetings, - Quorum - Chairman
15.2 Call and Notice of Meetings
15.3 Competence of Quorum
15.4 Continuing Directors May Act During a Vacancy
15.5 Appointment of Directors Committees
15.6 Committee Chairman
15.7 Committee Meetings
15.8 Validity of Meetings Where Directorship Deficient
15.9 Newly Elected Directors
15.10 Waiver of Notice of Meetings
15.11 Majority Rule
15.12 Resolution in Writing Effective
15.13 Meetings by Conference Telephone
16 OFFICERS
16.1 President and Secretary Required
16.2 Directors Authority
16.3 Disclosure of Conflicting Interests
16.4 Duties of Secretary
17 MINUTES, DOCUMENTS AND RECORDS
17.1 Minutes to be Kept
17.2 Records Office
18 EXECUTION OF DOCUMENTS
18.1 Seal Optional
18.2 Official Seal
18.3 Affixation of Seal to Documents
18.4 Mechanical Reproduction of Signatures
19 DIVIDENDS
19.1 Declaration of Dividends
19.2 Proportionate to Number of Shares Held
19.3 Dividend Bears No Interest
19.4 Payment in Specie Permitted
19.5 Capitalization of Undisturbed Surplus
19.6 Payment of Dividends
19.7 No Payment of Dividends
19.8 Effect of Transfer of Shares
19.9 Fractional Shares
19.10 Reserves
20 ACCOUNTS
20.1 Accounts to be Kept
20.2 Location of Accounts
20.3 Inspection of Accounts
21 NOTICES
21.1 Definition
21.2 Method of Giving Notice
21.3 Notice to Joint Holders
21.4 Notice to Personal Representative
21.5 Notice Deemed Effective
</TABLE>
<PAGE> 9
<TABLE>
<S> <C> <C>
21.6 & 21.7 Date Notice Deemed Given
21.8 Persons to Receive Notice
22 INDEMNIFICATION AND PROTECTION OF DIRECTORS, OFFICERS, EMPLOYEES,
AND CERTAIN AGENTS
22.1 Party to Legal Proceedings
22.2 Officers, Employees, Agents,
22.3 Extent of Indemnification
22.4 Persons Undertaking Liabilities
22.5 Limitation of Liability
22.6 Directors May Rely
22.7 Company May Purchase Insurance
23 PROHIBITIONS
23.1 Transfers and Registers Restricted
24 RESTRICTIONS ON SHARE TRANSFERS
24.1 Directors May Decline to Register Transfers
24.2 Offer to Other Members
</TABLE>
<PAGE> 10
"COMPANY ACT"
ARTICLES OF
PART 1 - INTERPRETATION
1.1
In these Articles, unless the context otherwise requires:
(a) "Board of Directors" or "Board" means the directors of the Company for
the time being;
(b) "casual vacancy" shall mean any vacancy occurring in the Board of
Directors of the Company save and except for a vacancy occurring at an
annual general meeting of the Company;
(c) "Company Act" means the Company Act of the Province of British Columbia
from time to time in force and all amendments thereto and includes all
regulations and amendments thereto made pursuant to that Act;
(d) "directors" means the directors of the Company for the time being;
(e) "month" means calendar month;
(f) "ordinary resolution" has the meaning assigned thereto by the Company
Act;
(g) "register" means the register of members to be kept pursuant to the
Company Act;
(h) "registered address" of a member shall be his address as recorded in
the register;
(i) "registered address" of a director means his address as recorded in the
Company's register of directors to be kept pursuant to the Company Act;
(j) "reporting company" has the meaning assigned thereto by the Company \
Act;
(k) "seal" means the common seal of the Company, if the Company has one;
(1) "special resolution" has the meaning assigned thereto by the Company
Act.
1.2
Expressions referring to writing shall be construed as including references to
printing, lithography, typewriting, photography and other modes of representing
or reproducing words in a visible form.
1.3
Words importing the singular include the plural and vice versa; and words
importing a male person include a female person and a corporation.
1.4
The definitions in the Company Act shall, with the necessary changes and so far
as applicable, apply to these Articles.
1.5
The regulations contained in Table A in the First Schedule to the Company Act
shall not apply to the Company.
PART 2 - SHARES AND SHARE CERTIFICATES
2.1
The authorized capital of the Company shall consist of shares of a class or
classes, which may be divided into one or more series, as described in the
Memorandum of the Company and shall be evidenced or represented in the form of a
certificate, and each class of shares shall have a distinct form of certificate.
2.2
Every share certificate issued by the Company shall be in such form as the
directors approve and shall comply with the Company Act.
<PAGE> 11
2.3
Every member is entitled, without charge, to one certificate representing
the share or shares of each class held by him or upon paying a sum not exceeding
the amount permitted by the Company Act, as the directors may from time to time
determine, several certificates each for one or more of those shares; provided
that, in respect of a share or shares held jointly by several persons, the
Company shall not be bound to issue more than one certificate, and delivery of a
certificate for a share to one of several joint holders or to his duly
authorized agent shall be sufficient delivery to all; and provided further that
the Company shall not be bound to issue certificates representing redeemable
shares, if such shares are to be redeemed within one month of the date on which
they were allotted. Any share certificate may be sent through the post by
registered pre-paid mail to the member entitled thereto at his registered
address, and the Company shall not be liable for any loss occasioned to the
member owing to any such share certificate so sent being lost in the post or
stolen.
2.4
Certificates shall be available for delivery by the Company within one month
after the allotment of and payment in full for any of its shares, or within one
month after the delivery to the Company of an instrument of transfer, unless the
conditions of the share otherwise provide, or where the Company has issued
shares with a special right to convert attached thereto, within one month after
receipt by the Company of the share certificate for the share to be converted
properly tendered for conversion.
2.5
If a share certificate:
(a) is worn out or defaced, the directors may, upon production to them of
that certificate and upon such other terms if any, as they may think
fit, order the certificate to be cancelled and may issue a new
certificate in lieu thereof;
(b) is lost, stolen or destroyed, then upon proof thereof to the
satisfaction of the directors and upon such indemnity, if any, as the
directors deem adequate being given, a new share certificate in place
thereof shall be issued to the person entitled to the lost, stolen or
destroyed certificate, or
(c) represents more than one share and the registered owner thereof
surrenders it to the Company with a written request that the Company
issue registered in his name two or more certificates each representing
a specified number of shares and in the aggregate representing the same
number of shares as the certificate so surrendered, the Company shall
cancel the certificate so surrendered and issue in place thereof
certificates in accordance with the request.
A sum, not exceeding that permitted by the Company Act, as the directors may
from time to time fix, shall be paid to the Company for each certificate issued
under this Article.
2.6
Except as required by law or statute or these Articles, no person shall be
recognized by the Company as holding any share upon any trust, and the Company
shall not be bound by or compelled in any way to recognize (even when having
notice thereof) any equitable, contingent, future or partial interest in any
share or any interest in any fractional part of a share or (except only as by
law or statute or these Articles provided or as ordered by a court of competent
jurisdiction) any other rights in respect of any share except an absolute right
to the entirety thereof in the registered holder.
2.7
Every share certificate shall be signed manually by at least one officer or
director of the Company, or by or on behalf of a registrar, branch registrar,
transfer agent or branch transfer agent of the Company and any additional
signatures may be printed or otherwise mechanically reproduced and a certificate
signed in either of those fashions shall be as valid as if signed manually,
notwithstanding that any person whose signature is so printed or mechanically
reproduced on a share certificate has ceased to hold the office that he is
stated on such certificate to hold at the date of the issue of a share
certificate.
2.8
The certificates of shares registered in the name of two or more persons shall
be delivered to the person first named on the register.
<PAGE> 12
PART 3 - ISSUE OF SHARES
3.1
The Company may commence business forthwith upon its incorporation
notwithstanding that any part of the capital of the Company may remain
unallotted or unsubscribed.
3.2
Subject to the Company Act and any provision contained in a resolution passed at
a general meeting authorizing any alteration of the capital of the Company, the
unissued shares of the Company together with any shares of the Company purchased
or redeemed by the Company and not cancelled shall be under the control of the
directors who may, subject to the rights of the holders of the shares of the
Company for the time being, issue, allot, sell, grant options on, or otherwise
dispose of such shares to such persons, including directors, and upon such terms
and conditions, and at such price or for such consideration, as the directors,
in their absolute discretion, may determine.
3.3
While the Company is not a reporting company and if the directors are so
required by the Company Act, they shall, before allotting any shares of the
Company, first offer such shares pro rata to the members in the following
manner.
(a) if the shares are not divided into classes the directors shall make
such offer pro rata to the members;
(b) if there are classes of shares, the directors shall make such offer pro
rata to the members holding all shares of the class proposed to be
allotted and if any shares remain, the directors shall then offer the
remaining shares pro rata to the other members;
(c) any such offer shall be made by notice specifying the number of shares
offered and limiting a time for acceptance which shall not be less than
seven days;
(d) after the expiration of the time for acceptance or on receipt of
written confirmation from the person to whom the offer is made that he
declines to accept the offer, and if there are no other members holding
shares who should first receive an offer, the directors may for three
months thereafter offer the shares to such persons and in such manner
as they think most beneficial to the Company, but the offer to those
persons shall not be at a price less than, or on terms more favorable
than, the offer to the members; and
(e) the directors shall not be required to make such an offer to a member
who has waived in writing his right to receive such offer and, while
the Company is a reporting company, such pro rata offering need not be
made.
3.4
The Company may at any time, subject to the Company Act, pay a commission or
allow a discount to any person in consideration of his subscribing or agreeing
to subscribe, or procuring or agreeing to procure subscriptions, whether
absolutely or conditionally, for any shares of the Company, which commission or
discount, except where the Company is a specially limited company, shall not, in
the aggregate exceed twenty-five percent (25%) of the subscription price. Where
the Company is a specially limited company, such discount or commission shall
not exceed ninety-five percent (95%) of the subscription price or the par
value, whichever is the greater. The company may also pay such brokerage as may
be lawful.
3.5
The Company may pay such brokerage fee or other consideration as may be lawful
for or in connection with the sale or placement of its securities.
3.6
Except as provided for by the Company Act, no share may be issued until it is
fully paid by the receipt by the Company of the full consideration therefor in
cash, property or past services actually performed for the Company. The document
evidencing indebtedness of the person to whom the shares are allotted is not
property for the purpose of this Article. The value of property and services for
the purpose of this Article shall be the fair market value thereof as determined
by the directors by resolution.
3.7
The directors may determine the price or consideration at or for which shares
without par value may be issued.
<PAGE> 13
3.8
The Company may, subject to the Company Act, issue share purchase warrants upon
such terns and conditions as the directors shall determine, which share purchase
warrants may be issued alone or in conjunction with debentures, debenture stock,
bonds, shares or any other security issued or created by the Company from time
to time.
PART 4 - SHARE TRANSFERS
4.1
Subject to the restrictions, if any, set forth in these Articles, (see Part 24),
any member may transfer his shares by instrument in writing executed by or on
behalf of such member and delivered to the Company or its transfer agent. The
instrument of transfer of any share of the Company shall be in the form, if any,
on the back of the Company's form of share certificates, and in any form which
the directors may approve. If the directors so require, each instrument of
transfer shall be in respect of only one class of share.
4.2
Every instrument of transfer shall be executed by the transferor and left at the
registered office of the Company or at the office of its transfer agent or
registrar for registration together with the share certificate for the shares to
be transferred and such other evidence, if any, as the directors or the transfer
agent of registrar may require to prove the title of the transferor or his right
to transfer the shares. All instruments of transfer where the transfer is
registered shall be retained by the Company or its transfer agent or registrar
and any instrument of transfer, where the transfer is not registered, shall be
returned to the person depositing the same together with the share certificate
which accompanied the same when tendered for registration. The transferor shall
remain the holder of the share until the name of the transferee is entered on
the register in respect of that share.
4.3
The signature of the registered owner of any shares, or of his duly authorized
attorney, upon the instrument of transfer constitutes an authority to the
Company to register the shares specified in the instrument of transfer in the
name of the person named in that instrument of transfer as transferee or, if no
person is so named, then in any name designated in writing by the person
depositing the share certificate and the instrument of transfer with the
Company or its agents.
4.4
The Company, and its directors, officers and agents are not bound to enquire
into any title of the transferee of any shares to be transferred, and are not
liable to the registered or any intermediate owner of those shares, for
registering the transfer.
4.5
There shall be paid to the Company in respect of the registration of any
transfer a sum, not exceeding that permitted by the Company Act, as the
Directors deem fit.
4.6
The Company may appoint one or more trust Companies as its transfer agent or
registrar for the purpose of issuing, countersigning, registering, transferring
and certifying the shares and share certificates of the Company and the Company
may cause to be kept one or more branch registers of members at such places
within or without British Columbia. The directors may from time to time by
resolution, regulations or otherwise make such provisions as they think fit
respecting the keeping of such registers or branch registers.
PART 5 - TRANSMISSION OF SHARES
5.1
In case of the death of a member, not being one of several joint holders, the
representative as set out in the Company Act of the deceased shall be the only
person recognized by the Company as having any title to the shares registered in
the name of such member, and in the case of death of any one or more-of the
joint registered holders of any share,
<PAGE> 14
the survivor or survivors shall be the only person or persons recognized by the
Company as having any title to or interest in such share, but nothing herein
contained shall release the estate of a deceased joint holder from any liability
in respect of any share that had been jointly held by him with other persons.
5.2
A member's guardian, committee, trustee, curator, tutor, personal representative
or Trustee in bankruptcy who becomes entitled to a share as a result of the
death or bankruptcy of any member shall, upon production to the registered
office of the Company of such documents as may be required by the Company Act be
registered as holder of the share to which he is so entitled.
5.3
Any person who becomes entitled to a share by operation of statute or as a
result of an order of a court of competent jurisdiction, shall, upon production
of such evidence as is required by the Company Act, be registered as holder of
such share.
PART 6 - ALTERATION OF CAPITAL
6.1
The Company may, by ordinary resolution filed with the Registrar, amend its
memorandum to increase the share capital of the Company by:
(a) creating shares with par value or shares without par value, or both;
(b) increasing the number of shares with par value or shares without par
value, or both;
(c) increasing the par value of a class of shares with par value, if no
shares of that class are issued.
6.2
The directors may, by resolution, increase the consideration at or for which
shares without nominal or par value may be issued.
6.3
Except as otherwise provided by conditions imposed at the time of creation of
any new shares or by these Articles, any addition to the authorized capital
resulting from the creation of new shares shall be subject to the provisions of
these Articles.
6.4
Unless these Articles elsewhere specifically otherwise provide, the provisions
of these Articles relating to general meetings shall apply, with the necessary
changes and so far as they are applicable, to a class meeting of members holding
a particular class of shares. A quorum for a class meeting of members shall be
one person holding shares of that class present in person at the commencement of
the meeting and representing in person or by proxy not less than one-third of
the class of shares affected, and one person, if he is a quorum, may constitute
a class meeting.
PART 7 - PURCHASE OF SHARES
7.1
Subject to the special rights and restrictions attached to any class of shares,
the Company may, by a resolution of the directors and in compliance with the
Company Act, purchase any of its shares at the price and upon the terms
specified in such resolution or redeem any class or series of its shares in
accordance with the special rights and restrictions attaching thereto. No such
purchase or redemption shall be made if the Company is insolvent at the time of
the proposed purchase or redemption or if the proposed purchase or redemption
would render the Company insolvent. Unless the shares are to be purchased
through a stock exchange or unless the Company is purchasing the shares from
dissenting members pursuant to the requirements of the Company Act, the Company
shall make its offer to purchase pro rata to every member who holds shares of
the class to be purchased, unless the purchase is of such a nature that the
Company Act exempts such purchase from the requirement of making the offer to
purchase pro rata to every member who holds shares of the class or series to be
purchased.
<PAGE> 15
7.2
If the company proposes at its option to redeem some but not all of the shams of
any class or series the directors may, subject to the special rights and
restrictions attached to such class or series, decide the manner in which the
shares to be redeemed shall be selected.
7.3
Subject to the provisions of the Company Act, any shares purchased or redeemed
by the Company may be sold or issued by it, but, while such shares are held by
the Company, it shall not exercise any vote in respect of these shares and no
dividend shall be paid thereon.
PART 8 - BORROWING POWERS
8.1
The directors may from time to time at their discretion authorize the Company to
borrow any sum of money for the purposes of the Company and may raise or secure
the repayment of that sum in such manner and upon such terms and conditions, in
all respects, as they think fit, and in particular, and without limiting the
generality of the foregoing, by the issue of bonds or debentures, or any
mortgage or charge, whether specific or roaring, or other security on the
undertaking or the whole or any part of the property of the Company, both
present and future.
8.2
The directors may make any debentures, bonds or other debt obligations issued by
the Company by their terms, assignable free from any equities between the
Company and the person to whom they may be issued, or any other person who
lawfully acquires the same by assignment, purchase, or otherwise, howsoever.
8.3
The directors may authorize the issue of any debentures, bonds or other debt
obligations of the Company at a discount, premium or otherwise, and with special
or other rights or privileges as to redemption, surrender, drawings, allotment
of or conversion into or exchange for shares, attending at general meetings of
the Company and otherwise as the directors may determine at or before the time
of issue.
8.4
The Company shall keep or cause to be kept in accordance with the Company Act
(a) a register of its debentures and debt obligations, and
(b) a register of the holders of its bonds, debentures and other debt
obligations,
and subject to the provisions, the Company Act may keep or cause to be kept one
or more branch registers of the holders of its bonds, debentures, or other debt
obligations within or without the Province of British Columbia as the directors
may from time to time determine and the directors may by resolution, regulations
or otherwise make such provisions as they think fit respecting the keeping of
such branch registers.
8.5
If the directors so authorize, or if any instrument under which any bonds,
debentures or other debt obligations of the Company are issued so provides, any
bonds, debentures and other debt obligations of the Company, instead of being
manually signed by the directors or officers authorized in that behalf, may have
the facsimile signatures of such directors or officers printed or otherwise
mechanically reproduced thereon and in either case, shall be as valid as if
signed manually, but no such bond, debenture or other debt obligation shall be
issued unless it is manually signed, countersigned or certified by or on behalf
of a trust company or other transfer agent or registrar duly authorized by the
directors or the instrument under which such bonds, debentures or other debt
obligations are issued so to do. Notwithstanding that any persons whose
facsimile signature is so used shall have ceased to hold the office that he is
stated on such bond, debenture or other debt obligation to hold at the date of
the actual issue thereof, the bond, debenture or other debt obligation shall be
valid and binding on the Company.
<PAGE> 16
8.6
Unless the conditions of issue of a debenture otherwise provide, the Company
shall, within one month after the allotment of and payment for any debenture,
have available for delivery the debenture so allotted and paid for. The Company
shall, within one month after the delivery to it of an instrument of transfer of
a debenture, have available for delivery the debenture transferred. If the
directors of the Company refuse to register a transfer of a debenture, a notice
of such refusal shall be sent to the prospective transferee within one month
after the date on which the instrument of transfer was delivered to the Company.
PART 9 - GENERAL MEETINGS
9.1
Subject to Article 9.2 and to the Company Act, the first annual general meeting
shall be held within 15 months from the date of incorporation and thereafter an
annual general meeting shall be held once in every calendar year at such time,
not being more than 13 months after the holding of the past preceding annual
general meeting, and place as the directors shall appoint. In default of the
meeting being so held, the meeting shall be held in the month next following and
may be called by any two members in the same manner as nearly as possible at
that in which meetings are to be called by the directors.
9.2
If the Company is not a reporting company and if all members entitled to attend
and vote at the annual general meeting of the Company consent in writing each
year to the business required to be transacted at the annual general meeting,
that business shall be as valid as if transacted at an annual general meeting
duly convened and held and, it is not necessary for the Company to hold an
annual general meeting that year.
9.3
Every general meeting, other than an annual general meeting, shall be called an
extraordinary general meeting.
9.4
The directors may, whenever they think fit, and they shall, promptly on the
receipt of a requisition of a member or members of the Company representing not
less than one-twentieth of such of the issued shares in the capital of the
Company as at the date of the requisition carry the right of voting in all
circumstances at general meetings, call an extraordinary general meeting of the
Company.
9.5
Any such requisition, and the meeting to be called pursuant thereto, shall
comply with the provisions of the Company Act.
9.6
Not less than 21 days' notice of any general meeting specifying the time and
place of meeting and in case of special business, the general nature of that
business shall be given in the manner mentioned in Article 21, or in such other
manner, if any, as may be prescribed by ordinary resolution whether previous
notice thereof has been given or not, to any person as may by law or under these
Articles or other regulations of the Company entitled to receive such notice
from the Company. But the accidental omission to give notice of any meeting to,
or the non-receipt of any such notice by, any of such persons shall not
invalidate any proceedings at that meeting.
9.7
All the members of the Company entitled to attend at a general melting may, by
unanimous consent in writing given before, during or after the meeting, or, if
they are present at the meeting by a unanimous vote, waive or reduce the period
of notice of such meeting, and an entry in the minute book of such waiver or
reduction shall be sufficient evidence of the due convening of the meeting. The
directors may, for the purpose of determining members entitled to notice of, or
to vote at, any general meeting or class meeting fix in advance a date as the
record date, which date shall not be more than 49 days before the date of the
meeting. Where no such record date is fixed, it shall be deemed to be the date
on which the notice calling the general meeting or class meeting is mailed for
the purpose of determining those members entitled to notice and to vote at such
meeting.
<PAGE> 17
9.8
Where any special business includes the presenting, considering, approving,
ratifying or authorizing of the execution of any document, then the portion of
any notice relating to such document shall be sufficient if the same states that
a copy of the document or proposed document is or will be available
for inspection by members at a place in the Province of British Columbia
specified in such notice during business hours in any specified working day or
days prior to the date of the meeting.
PART 10 - PROCEEDINGS AT GENERAL MEETINGS
10.1
The following business at a general meeting shall be deemed to be special
business:
(a) all business at an extraordinary general meeting, and
(b) all business that is transacted at an annual general meeting, with the
exception of the consideration of the financial statement and the
report of the directors and auditors, the election of directors, the
appointment of the auditors and such other business as, under these
Articles, ought to be transacted at an annual general meeting, or any
business which is brought under consideration by the report of the
directors.
10.2
Save as otherwise herein provided a quorum for a general meeting shall be:
(a) two members or proxyholders representing two members; or
(b) one member and a proxyholder representing another member
personally present at the commencement of the meeting and holding or
representing by proxy not less than one-twentieth of the issued shares of a
class of shares the holders of which are entitled to attend and to vote at such
meeting. Where the Company has only one member, the quorum shall be that member
or his proxyholder.
10.3
No business, other than the election of a chairman and the adjournment of the
meeting shall be transacted at any general meeting unless the quorum requisite
is present at the commencement of the meeting, but such quorum need not be
present throughout the meeting.
10.4
If within one-half hour from the time appointed for a meeting, a quorum is not
present, the meeting, if convened by requisition of the members, shall be
dissolved; but in any other case it shall stand adjourned to the same day in the
next week at the same time and place. If at such adjourned meeting a quorum is
not present within one-half hour from the time appointed, the person or persons
present and being or representing by proxy, a member or members entitled to
attend and vote at the meeting shall constitute a quorum.
10.5
The Chairman of the Board, if any, or in his absence the President of the
Company shall be entitled to preside as chairman at every general meeting of the
Company.
10.6
If at any meeting neither the Chairman of the Board, if any, nor the President
is present within fifteen minutes after the time appointed for holding the
meeting or is willing to act as chairman, the directors present shall choose
some one of their number to be chairman. If no director be present or if all the
directors present decline to take the chair or shall fail to so choose, the
members present shall choose one of their number to be chairman.
10.7
The chairman of the meeting may, with the consent of any meeting at which a
quorum is present and shall if so directed by the meeting, adjourn the meeting
from time to time and from place to place, but no business shall be transacted
at any adjourned meeting other than the business left unfinished at the meeting
from which the adjournment took place.
<PAGE> 18
When a meeting is adjourned for 30 days or more, notice of the adjourned meeting
shall be given as in the case of a general meeting. Save as aforesaid, it shall
not be necessary to give any notice of an adjournment or of the business to be
transacted at an adjourned meeting.
10.8
Subject to the provisions of the Company Act, every question submitted to a
general meeting shall be decided on a show of hands unless a poll is, before or
on the declaration of the result of the show of hands, directed by the chairman
or demanded by a member entitled to vote who is present in person or by proxy,
and the chairman shall declare to the meeting the decision on every question in
accordance with the result of the show of hands or the poll, and such decision
shall be entered in the book of proceedings of the Company. A declaration by the
chairman that a resolution has been carried or carried unanimously or by a
particular majority, or lost or not carried by a particular majority, and an
entry to that effect in the book containing the minutes of the proceedings of
the Company shall be conclusive evidence of the fact without proof of the number
or proportion of the votes recorded in favour of or against such resolution.
10.9
No resolution proposed at a meeting need be seconded and the chairman of any
meeting shall be entitled to move or second a resolution.
10.10
In case of an equality of votes upon a resolution the chairman shall not, either
on a show of hands or on a poll, have a casting or second vote in addition to
the vote or votes to which he may be entitled as a member.
10.11
Subject to the provisions of Article 10.13, if a poll is duly demanded as
aforesaid, it shall be taken in such manner and at such time within seven days
from the date of the meeting and place as the chairman of the meeting directs,
and either at once or after an interval or adjournment not exceeding seven days,
and the result of the poll shall be deemed to be the resolution of the meeting
at which the poll is demanded. A demand for a poll may be withdrawn. In the case
of any dispute as to the admission or rejection of a vote, the chairman shall
determine the same and such determination made in good faith shall be final and
conclusive.
10.12
A member entitled to more than one vote need not, if he votes, use all his votes
or cast all the votes he uses in the same way.
10.13
No poll may be demanded on the election of a chairman of a meeting and a poll
demanded on a question of adjournment shall be taken at the meeting without
adjournment.
10.14
The demand of a poll shall not prevent the continuance of a meeting for the
transaction of any business other than the question on which a poll has been
demanded.
10.15
Every ballot cast upon a poll and every proxy appointing a proxyholder who cast
a ballot upon a poll shall be retained by the Secretary for the period and be
subject to the inspection as the Company Act may provide.
PART 11- VOTES OF MEMBERS
11.1
Subject to any special rights or restrictions for the time being attached to any
shares, on a show of hands every member present in person shall have one vote,
and on a poll every member, present in person or by proxy, shall have one vote
for each share which is registered in his name.
<PAGE> 19
11.2
Any person who is not registered as a member but is entitled to vote at any
general meeting in respect of a share, may vote the share in the same manner as
if he were a member; but, unless the directors have previously admitted his
right to vote at that meeting in respect of the share, he shall satisfy the
directors of his right to vote the share before the time for holding the
meeting, or adjourned meeting, as the case may be, at which he proposes to vote.
11.3
Where there are joint members registered in respect of any share, any one of the
joint members may vote at any meeting, either personally or by proxy, in respect
of the share as if he were solely entitled to it. If more than one of the joint
members is present at any meeting, personally or by proxy, the joint member
present whose name stands first on the register in respect of the share shall
alone be entitled to vote in respect of that share. Several executors or
administrators of a deceased member in whose sole name any share stands shall,
for the purpose of this Article, be deemed joint members.
11.4
A corporation, not being a subsidiary of the Company, that is a member may vote
by its proxyholder or by its duly authorized representative. Such proxyholder or
duly authorized representative is entitled to speak, vote, and in all other
respects exercise the rights of a member and shall be deemed to be a member for
all purposes in connection with any general meeting of the Company. Where the
member is a subsidiary of the Company, the member shall not form part of the
quorum, or vote or permit to be voted any shares of the Company registered in
its name at a general meeting of members of the Company.
11.5
A member for whom a committee has been duly appointed may vote, whether on a
show of hands or on a poll, by his committee and his committee may appoint a
proxyholder.
11.6
A member holding more than one share in respect of which he is entitled to vote
shall be entitled to appoint one or more proxyholders to attend, act and vote
for him on the same occasion. If such a member should appoint more than one
proxyholder for the same occasion, he shall specify the number of shares each
proxyholder shall be entitled to vote.
11.7
A proxy or an instrument appointing a duly authorized representative of a
corporation shall be in writing, under the hand of the appointor or of his
attorney duly authorized in writing, or, if such appointor is a corporation,
either under its seal or under the hand of an officer or attorney duly
authorized.
11.8
A proxyholder need not be a member of the Company if:
(a) the Company is at the time a reporting company, or
(b) the member appointing the proxyholder is a corporation, or
(c) the Company shall have at the time only one member, or
(d) the persons present in person or by proxy and entitled to vote at the
meeting by resolution permit the proxyholder to attend and vote; for
the purpose of such resolution the proxyholder shall be counted in the
quorum but shall not be entitled to vote,
and in all other cases a proxyholder must be a member of the Company.
11.9
A proxy and the power of attorney or other authority, if any, under which it is
signed or a notarially certified copy thereof shall be deposited at the
registered office of the Company or at such other place as is specified for that
purpose in the notice calling the meeting, not less than 48 hours before the
time for holding the meeting at which the person named in the proxy proposes to
vote, or shall be deposited with the chairman of the meeting prior to the
commencement thereof. In addition to any other method of depositing proxies
provided for in these Articles, the directors may from time to time make
regulations permitting the lodgings of proxies appointing proxyholders at some
<PAGE> 20
place or places other than the place at which a meeting or adjourned meeting of
members is to be held and for particulars of such proxies to be cabled or
telegraphed or sent in writing before the meeting or adjourned meeting to the
Company or any agent of the Company for the purpose of receiving such
particulars and providing that proxies appointing a proxyholder so lodged may be
voted upon as though the proxies themselves were produced to the chairman of the
meeting or adjourned meeting as required by this part and votes given in
accordance with such regulations shall be valid and shall be counted.
11.10
A vote given in accordance with the terms of a proxy shall be valid
notwithstanding the previous death or insanity of the member or revocation of
the proxy or of the authority under which the proxy was executed, or the
transfer of the share in respect of which the proxy is given, provided no prior
notice in writing of the death, insanity, revocation or transfer as aforesaid
shall have been received at the registered office of the Company or by the
chairman of the meeting or adjourned meeting at which the vote was given.
11.11
Unless, in the circumstances, the Company Act requires any other form of proxy,
a proxy appointing a proxyholder, whether for a specified meeting or otherwise,
shall be in the form following, or in any other form that the directors shall
approve:
(Name of Company)
The undersigned hereby appoints ________________________________________________
(or failing him ________________________________________________________________
of ___________________________), as proxyholder for the undersigned to attend at
and vote for and on behalf of the undersigned at the general meeting of the
Company to be held on the _____ day of _________________, 19____ and at any
adjournment of that meeting.
Signed this day of , 19 .
----- ------------------ -------
-----------------------------------------
(Signature of Member)
PART 12 -- DIRECTORS
12.1
The management of the business of the company shall be vested in the directors
and the directors may exercise all such powers and do all such acts and things
as the Company is, by its Memorandum or otherwise, authorized to exercise and
do, and which are not by these Articles or by statute or otherwise lawfully
directed or required to be exercised or done by the Company in general meeting,
but subject nevertheless to the provisions of all laws affecting the Company and
of these Articles and to any regulations not being inconsistent with these
Articles which shall from time to time be made by the Company in general
meeting; but no regulation made by the Company in general meeting shall
invalidate any prior act of the directors that would have been valid if that
regulation had not been made.
12.2
The subscriber(s) to the Memorandum are the first directors. The directors to
succeed the first directors and the number of directors may be determined in
writing by a majority of the subscribers to the Memorandum. The number of
directors may be changed from time to time by ordinary resolution, whether
previous notice thereof has been given or not, but shall never be less than one
while the Company is not a reporting company and three while the Company is a
reporting company.
12.3
A director shall not be required to have any share qualification but any person
not being a member of the Company who becomes a director shall be deemed to have
agreed to be bound by the provisions of the Articles to the same extent as if he
were a member of the Company.
<PAGE> 21
12.4
The remuneration of the directors as such may from time to time be determined by
the members, unless by ordinary resolution the directors are authorized to
determine their remuneration. Such remuneration is to be in addition to any
salary or other remuneration paid to any officer or employee of the Company as
such, who is also a director. The directors shall be repaid such reasonable
expenses as they may incur in and about the business of the Company and if any
director shall perform any professional or other services for the Company that
in the opinion of the directors are outside the ordinary duties of a director or
shall otherwise be specifically occupied in or about the Company's business, he
may be paid a remuneration to be fixed by the Board, or, at the option of such
director, by the Company in general meeting, and such remuneration may be either
in addition to, or in substitution for, any other remuneration that he may be
entitled to receive, and the same shall be charged as part of the ordinary
working expenses. Unless otherwise determined by ordinary resolution, the
directors on behalf of the Company may pay a gratuity or pension or allowance on
retirement to any director who has held any salaried office or place of profit
with the Company or to his spouse or dependents and may make contributions to
any fund and pay premiums for the purchase or provision of any such gratuity,
pension or allowance.
12.5
The directors may from time to time and at any time by power of attorney appoint
any company, firm or person or body of persons, whether nominated directly or
indirectly by the directors, to be the attorney or attorneys of the Company for
such purposes and with such powers, authorities and discretions, not exceeding
those vested in or exercisable by the directors under these Articles, and for
such period and subject to such conditions as they may think fit, and any such
powers of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorney as the directors may think
fit and may also authorize any such attorney to delegate all or any of the
powers, authorities and discretions vested in him.
12.6
A director who is in any way, whether directly or indirectly, interested in a
contract or proposed contract or arrangement with the Company shall declare the
nature of his interest at a meeting of the directors in accordance with the
provisions of the Company Act. A director shall not vote in respect of any such
contract or transaction with the Company in which he is interested and if he
shall do so his vote shall not be counted, but he may be counted in the quorum
present at the meeting at which such vote is taken. Subject to the Company Act,
the foregoing shall not apply to
(a) any contract or transaction relating to a loan to the company, which a
director or a specified corporation or a specified firm in which he has
an interest has guaranteed or joined in guaranteeing the repayment of
the loan or any part of the loan, or
(b) any contract or transaction made or to be made with, or for the benefit
of an affiliated corporation of which a director is a director or
officer, or
(c) determining the remuneration of the directors, or
(d) purchasing and maintaining insurance to cover directors against
liability incurred by them as directors, or
(e) the indemnification of any director by the Company.
Subject to the Company Act, the foregoing prohibitions and exceptions thereto
may from time to time be suspended or amended to any extent by ordinary
resolution, either generally or in respect of any particular contract,
arrangement or transaction or for any particular period.
12.7
A director may hold any office or place of profit under the Company, other than
auditor, in conjunction with his office of director for such period and on such
period and on such terms, as to remuneration or otherwise, as the directors may
determine. Subject to compliance with the Company Act, no director or intended
director shall be disqualified by his office from contracting with the office or
place of profit or as vendor, purchaser or otherwise, and, subject to compliance
with the Company Act, no contract or transaction entered into by or on behalf of
the Company in which a director is in any way interested shall be liable to be
avoided.
12.8
Any director may act by himself or his firm in a professional capacity for the
Company, and he or his firm shall be entitled to remuneration for professional
services as if he were not a director.
<PAGE> 22
12.9
A director may be or become a director or other officer or employee of, or
otherwise interested in, any corporation or firm in which the Company may be
interested as a shareholder or otherwise, and, subject to compliance with the
provisions of the Company Act, such director shall not be accountable to the
Company for any remuneration or other benefits received by him as director,
officer or employee of, or from his interest in, such other corporation or firm,
unless the Company in general meeting otherwise directs.
12.10
Any director may, from time to time, appoint any person who is approved by
resolution of the directors to be his alternate director. The appointee, while
he holds office as an alternate director, shall be entitled to notice of
meetings of the directors and, in the absence of the director for whom he is an
alternate, to attend and vote thereat as a director or sign any resolution of
directors to be consented to in writing, and shall not be entitled to be
remunerated otherwise than out of the remuneration of the director appointing
him. Any director may make or revoke an appointment of his alternate director by
notice in writing or by telegram or cable to be delivered or addressed, postage
or other charges prepaid, to the registered office of the Company. The directors
may by resolution revoke any appointment of an alternate director, any such
revocation to become effective upon notice thereof having been given to the
director who made the appointment. No person shall act as an alternate for more
than one director at any given time and no director may act as an alternate for
any other director.
PART 13 - TERMINATION OF DIRECTORSHIP OF DIRECTORS
13.1
The directorship of a director shall be immediately terminated:
(a) if by notice in writing to the Company at its registered office he
resigns;
(b) if he is removal pursuant to Article 14.2;
(c) if convicted within or without the Province of an indictable offence
and the other directors resolve to remove him; or
(d) if he ceases to be qualified to act as a director under the Company
Act.
PART 14 - RETIREMENT AND ELECTION OF DIRECTORS
14.1
At each annual general meeting of the Company all the directors shall retire and
the Company shall elect a Board of Directors consisting of the number of
directors for the time being fixed pursuant to these Articles. If in any
calendar year the Company does not hold an annual general meeting, the directors
appointed at the last annual general meeting of the Company shall be deemed to
have been elected or appointed as directors on the last day on which the meeting
could have been held pursuant to the Company Act and the directors so appointed
or elected may hold office until other directors are appointed or elected or
until the day on which the next annual general meeting is held.
14.2
The Company may by special resolution remove any director and, by ordinary
resolution, appoint another person in his stead. Any director so appointed shall
hold office only until the next following annual general meeting of the Company,
but shall be eligible for re-election at such meeting.
14.3
The directors shall have power at any time and from time to time to appoint any
person as a director, to fill a casual vacancy on the Board or a vacancy
resulting from an increase of the number of directors necessitated by the
Company Act upon the Company becoming a reporting company. Any director so
appointed shall hold office only until the next following annual general meeting
of the Company, but shall be eligible for re-election at such meeting.
<PAGE> 23
PART 15 - PROCEEDINGS OF DIRECTORS
15.1
The directors may meet together at such places as they think fit for the
dispatch of business, adjourn and otherwise regulate their meetings and
proceedings, as they see fit. The directors may from time to time fix the quorum
necessary for the transaction of business and unless so fixed such quorum shall
be a majority of the Board. The Chairman of the Board, if any, or in his absence
the President of the Company, shall be chairman of all meetings of the Board,
but if at any meeting neither the Chairman of the Board, if any, nor the
President shall be present within 15 minutes after the time appointed for
holding the same or if both the Chairman of the Board and the President, being
present decline to act, the directors present may choose some one of their
number to be chairman at such meeting. A director interested is to be counted in
a quorum notwithstanding his interest. In the event the Company is a one-man
company, a quorum shall consist of one.
15.2
A director may at any time, and the Secretary shall, upon the written request of
a director, call a meeting of the directors. Reasonable notice thereof
specifying the time and place of such meeting shall be mailed, postage prepaid,
addressed to each of the directors at his registered address before the time
fixed for the meeting or such notice may be given to each director either
personally or by leaving it at his usual business or residential address or by
telephone, telegram, telex or other method of transmitting visually recorded
messages. It shall not be necessary to give to any director notice of a meeting
of directors immediately following a general meeting at which such director has
been elected or notice of a meeting of directors at which such director shall
have been appointed. Accidental omission to give notice of a meeting of
directors to, or the non-receipt of notice by, any director, shall not
invalidate the proceedings at that meeting.
15.3
A meeting of the directors at which a quorum is present shall be competent to
exercise all or any of the authorities, power and discretion for the time being
vested in or exercisable by the directors.
15.4
The continuing directors may act notwithstanding any vacancy in their body, but,
if and so long as their number is reduced below the number fixed pursuant to
these Articles as the necessary quorum of directors, the continuing directors or
director may act for the purpose of filling vacancies increasing the number of
directors to that number, or for the purpose of summoning a general meeting of
the Company, but for no other purpose.
15.5
The directors may delegate any but not all of their powers to committees
consisting of such of the directors as they think fit. Any committee so formed
shall in the exercise of the powers so delegated conform to any regulations that
may from time to time be imposed on it by the directors, and shall keep
regular minutes of their transactions and shall cause such minutes to be
recorded in books kept for that purpose, and shall report the same to the Board
of Directors at such times as the Board shall require.
15.6
A committee may elect a chairman of its meetings; if no such chairman is
elected, or if at any meetings the chairman is not present within 15 minutes
after the time appointed for holding the same, the members present may choose
one of their number to be chairman of the meeting.
15.7
The members of a committee may meet and adjourn as they think proper. Questions
arising at any meeting shall be determined by a majority of votes of the members
present and in case of an equality of votes the chairman shall not have a second
or casting vote.
15.8
All acts done by any meeting of the directors or by a committee of directors or
by any person acting as a director shall, notwithstanding that it shall be
afterwards discovered that there was some defect in the appointment of any such
<PAGE> 24
director or person acting as aforesaid, or that they or any of them were
disqualified, be as valid as if every such person had been duly appointed and
was qualified to be a director.
15.9
For the first meeting of the Board to be held immediately following the
appointment or election of a director or directors at an annual or general
meeting of shareholders or for a meeting of the Board at which a director is
appointed to fill a vacancy in the Board, no notice of such meetings shall be
necessary to the newly elected or appointed director or directors in order for
the meeting to be duly constituted, provided that a quorum of directors is
present.
15.10
Any director of the Company who may be absent either temporarily or permanently
from the Province of British Columbia may file at the office of the Company a
waiver of notice which may be by letter, telegram or cable of any meeting of the
directors and may at any time withdraw such waiver, and until such waiver is
withdrawn, no notice of meetings of directors shall be sent to such director,
and any and all meetings of the directors of the Company, notice of which shall
not have been given to such director, shall, provided a quorum of the directors
is present, be valid and binding upon the Company.
15.11
Questions arising at any meeting of the directors shall be decided by a majority
of votes. In case of an equality of votes, the Chairman shall not have a second
or casting vote.
15.12
A resolution consented to in writing, whether by document, telegram, telex or
any method of transmitting legibly recorded messages by all of the directors
shall be as valid and effectual as if it had been passed at a meeting of the
directors duly called and held. Such resolution may be in two or more
counterparts which together shall be deemed to constitute one resolution in
writing. Such resolution shall be filed with the minutes of the proceedings of
the directors and shall be effective on the dates stated therein or the latest
date stated on any counterparts.
15.13
A director may participate in a meeting of the Board or of any committee of the
directors through the use of conference telephones or other communication
facilities by means of which all directors participating in the meeting can hear
each other and provided that all such directors agree to such participation. A
director participating in a meeting in accordance with this Article shall be
deemed to be present at the meeting and to have so agreed and shall be counted
in the quorum therefore and be entitled to speak and vote thereat.
PART 16 - OFFICERS
16.1
The Board of Directors shall from time to time appoint a President and a
Secretary and may appoint such other officers of the Company as it may
determine, none of whom, save the Chairman of the Board, if any, and the
President, need be directors. Such officers shall be qualified pursuant to the
Company Act to hold office. One person may hold more than one of such offices
except that the offices of President and Secretary must be held by different
persons unless the Company has only one member.
16.2
All appointments of officers shall be made upon such terms and conditions and at
such remuneration, whether by way of salary, fee, commission, participation in
profits, or otherwise, as the directors may determine, and every such
appointment shall be subject to termination at the pleasure of the directors
unless otherwise fixed by contract.
16.3
Every officer of the Company who holds any office or possesses any property
whereby, whether directly or indirectly, duties or interests might be created in
conflict with his duties or interests as an officer of the Company shall, in
writing, disclose to the President the fact and nature, character and extent of
the conflict.
<PAGE> 25
16.4
The Secretary of the Company shall:
(a) keep or cause to be kept the records of the Company in accordance with
the provisions of the Company Act;
(b) make or cause to be made all required filings with the Registrar of
Companies for the Province of British Columbia, including the filing
within 14 days of being passed, a certified copy of every resolution
which by the Company Act does not take effect until such filing has
been made; and
(c) perform such other duties as may be assigned to the office.
PART 17 - MINUTES, DOCUMENTS AND RECORDS
17.1
The directors shall cause minutes to be duly entered in books provided for the
purposes:
(a) of all appointments of officers;
(b) of the names of the directors or their alternates present at each
meeting of directors and of any committee of directors;
(c) of all orders made by the directors or committees of directors;
(d) of all resolutions and proceedings of general meetings of the Company
and of all meetings of the directors and of committees of directors;
(e) of all waivers signed or resolutions passed by consent being given
thereto in writing.
17.2
The directors shall cause the Company to keep at its records office or at such
other place as the Company Act may permit, the documents, copy documents,
registers, minutes, and records which the Company is required by the Company Act
to keep at its records office or such other place.
PART 18 - EXECUTION OF DOCUMENTS
18.1
The directors may provide a common seal for the company and for its use and the
directors shall have power from time to time to destroy the same and substitute
a new seal in place thereof.
18.2
Subject to the provisions of the Company Act, the directors may provide for use
in any other Province, Territory, State of Country an official seal, which shall
have on its face the name of the Province, Territory, State or Country where it
is to be used.
18.3
If the Company has a common seal, the directors shall provide for its safe
custody and it shall not be impressed on any instrument except when such
impression is attested by the signature or signatures of:
(a) the President, a Vice-President or director, together with the
Secretary or an Assistant Secretary; or
(b) any two directors; or
(c) such one or more directors or officers as may be prescribed from time
to time by resolution of the directors; or
(d) where the company has but one director, that director or the Secretary
or an Assistant Secretary.
18.4
The signature of any officer of the Company may, if authorized by the directors,
be printed, lithographed, engraved or otherwise mechanically reproduced upon all
instruments executed or issued by the Company or any officer thereof; and any
instrument on which the signature of any such person is so reproduced shall be
deemed to have been manually signed by such person whose signature is so
reproduced and shall be as valid to all intents and purposes as if such
instrument had been signed manually, and notwithstanding that the person whose
signature is so reproduced may have ceased to hold office at the date of the
delivery or issue of such instrument. The term "instrument" as used
<PAGE> 26
in this Article shall include deeds, mortgages, hypothecs, charges, conveyances,
transfers and assignments of property, real or personal, agreements releases,
receipts and discharges for the payment of money or other obligations,
certificates of the Company's shares, share warrants of the Company, bonds,
debentures and other debt obligations of the Company, and all paper writings.
PART 19 - DIVIDENDS
19.1
The directors may declare dividends and fix the date of record therefore and the
date for payment thereof. No notice need be given of the declaration of any
dividend. If no date of record is fixed, the date of record shall be deemed to
be the same date as the date the dividend is declared. No dividend shall be paid
otherwise than out of funds and/or assets properly available for the payment of
dividends and a declaration by the directors as to the sufficiency of such funds
and/or assets available for dividends shall be conclusive.
19.2
Subject to the terms of shares with special rights or restrictions, all
dividends shall be declared according to the number of shares held.
19.3
No dividend shall bear interest against the Company. Where the dividend to which
a member is entitled includes a fraction of a cent, such fraction shall be
disregarded in making payment thereof and such payment shall be deemed to be
payment in full.
19.4
The directors may direct payment of any dividend wholly or partly by the
distribution of specific assets or of paidup shares, bonds, debentures or other
debt obligations of the Company, or in any one or more of these ways, and, where
any difficulty arises in regard to the distribution, the directors may settle
the same as they think expedient, and in particular may fix the value for
distribution of specific assets, and may determine that cash payments shall be
made to a member upon the basis of the value so fixed in place of fractional
shares, bonds, debentures or other debt obligations in order to adjust the
rights of all parties, and may vest any of those specific assets in trustees
upon such trusts for the persons entitled as may seem expedient to the
directors.
19.5
Notwithstanding anything contained in these Articles, the directors may from
time to time capitalize any undistributed surplus on hand of the Company and may
from time to time issue as fully paid and non-assessable any unissued shares or
any bonds, debentures or other debt obligations of the Company as a dividend
representing such undistributed surplus on hand or any part thereof.
19.6
Any dividend, interest or other monies payable in cash in respect of shares may
be paid by cheque or warrant sent through the post directed to the registered
address of the holder, or, in the case of joint holders, to the registered
address of that one of the joint holders who is first named on the register or
to such person and to such address as the holder or joint holders may in writing
direct. Every such cheque or warrant shall be made payable to the order of the
person to whom it is sent. Any one of two or more joint holders may give
effectual receipts for any dividends, bonuses or other monies payable in respect
of the shares held by them as joint holders, and the Company is not bound to see
to the execution of any trust in respect of shares of the Company. The mailing
of such cheque or warrant shall, to the extent of the sum represented thereby
(plus the amount of any tax required by law to be deducted) discharge all
liability for the dividend, unless such cheque or warrant shall not be paid on
presentation or the amount of tax so deducted is not paid to the appropriate
taxing authority.
19.7
No dividend shall be paid if:
(a) the Company is insolvent; or
(b) the payment of the dividend would render the Company insolvent; or
<PAGE> 27
(c) the Company has outstanding shares containing rights which provide that
those shares shall be redeemed or purchased on or before a certain
date and provision has not been made for a capital redemption fund in
compliance with the Company Act.
19.8
A transfer of a share shall not pass the right to any dividend declared thereon
before the registration of the transfer in the register.
19.9
Notwithstanding any other provisions of these Articles should any dividend
result in any shareholders being entitled to a fractional part of a share of the
Company, the directors shall have the right to pay such shareholders in place of
that fractional share, the cash equivalent thereof calculated on the par value
thereof or, in the case of shares without nominal or par value, calculated on
the price or consideration for which such shares were or were deemed to be
issued, and shall have the further right and complete discretion to carry out
such distribution and to adjust the rights of the shareholders with respect
thereto on as practical and equitable a basis as possible including the right to
arrange through a fiscal agent or otherwise for the sale, consolidation or other
disposition of those fractional shares on behalf of those shareholders of the
Company.
19.10
The directors may, before declaring any dividend, set aside out of the profits
of the Company such sums as they think proper as appropriations from income,
which shall at the discretion of the directors, be applicable or meeting
contingencies, or for equalizing dividends, or for any other purpose to which
the profits of the company may be properly applied, and pending such application
may, either be employed in the business of the Company or be invested in such
investments as the directors in their discretion may from time to time
determine.
PART 20 - ACCOUNTS
20.1
The directors shall cause records and books of accounts to be kept as necessary
to properly record the financial affairs and conditions of the Company and to
comply with the provisions of statutes applicable to the Company.
20.2
The directors shall determine the place at which the accounting records of the
Company shall be kept and those records shall be open to the inspection of any
director during the normal business hours of the Company.
20.3
The directors shall determine to what extent, at what times and places and under
what conditions the accounting records of the Company shall be open to the
inspection of members.
PART 21 - NOTICES
21.1
In this Part 21, unless the context otherwise requires, the word notice shall
include a notice, statement, report or any other document.
21.2
In addition to any other method of giving notice as set out in the Company Act,
or as otherwise set out in these Articles, a notice may be given or delivered to
any member or director, either personally or by sending it by post to him in a
letter, envelope or wrapper, postage prepaid, addressed to the member or
director at his registered address. A certificate signed by the Secretary or
other officer of the Company or of any other corporation acting in that behalf
for the Company that the letter, envelope or wrapper containing the notice,
statement or report was so addressed, prepaid and mailed shall be conclusive
evidence thereof.
<PAGE> 28
21.3
A notice may be given by the Company to joint members in respect of a share
registered in their names by giving the notice to the joint member first named
in the register of members in respect of that share.
21.4
A notice may be given by the Company to the persons entitled to a share in
consequence of the death or bankruptcy of a member by sending it through the
post in a prepaid letter, envelope or wrapper addressed to them by name, or by
the title of representatives of the deceased, or trustee of the bankrupt, or by
any like description, at the address, if any, supplied for the purpose by the
persons claiming to be so entitled, or until that address has been so supplied,
by giving the notice in any manner in which the same might have been given if
the death or bankruptcy had not occurred.
21.5
Any notice or document sent by post to or left at the registered address of any
member shall, notwithstanding that member is then deceased and whether or not
the Company has notice of his death, be deemed to have been duly served in
respect of any registered shares, whether held solely or jointly with other
persons by that deceased member, until some other person is registered in his
place as the member or joint member in respect of those shares, and that service
shall for all purposes of these Articles be deemed a sufficient service of such
notice or document on his personal representatives and all persons, if any,
jointly interested with him in those shares.
21.6
Any notice sent by post shall be deemed to have been served on the day following
that on which the letter, envelope or wrapper containing that notice is posted,
and in proving service thereof it shall be sufficient to prove that the letter,
envelope or wrapper containing the notice was properly addressed and put in a
Canadian Government post office, postage prepaid.
21.7
If a number of days' notice or a notice extending over any other period is
required to be given, the day of service shall not, unless it is otherwise
provided in these Articles, be counted in the number of days or other period
required.
21.8
Notice of every general meeting shall be given in the manner authorized by these
Articles, to:
(a) every member holding a share or shares carrying the right to vote at
such meetings on the record date or, if no record date was established
by the directors, on the date of mailing;
(b) the personal representative of a deceased member;
(c) the trustee in bankruptcy of a bankrupt member; and
(d) the auditor of the Company, if any.
PART 22 - INDEMNIFICATION AND PROTECTION OF DIRECTORS, OFFICERS,
EMPLOYEES AND CERTAIN AGENTS
22.1
The Company shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or proceeding,
whether or not brought by the Company or by a corporation or other legal entity
or enterprise, officer, employee, or agent of the Company or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, a partnership, joint venture, trust or other enterprise,
against all costs, charges and expenses, including legal fees and any amount
paid to settle the action or proceeding or satisfy a judgment, if he acted
honestly and in good faith with a view to the best interests of the corporation
or other legal entity or enterprise as aforesaid of which he is or was a
director, officer, employee or agent, as the case may be, and exercised the
care, diligence and skill of a reasonably prudent person, and with respect to
any criminal or administrative action or proceeding, he had reasonable grounds
for believing that his conduct was lawful; provided that no one shall be
indemnified hereunder;
(a) if he has failed to carry out his duty to act in accordance with the
Company Act or any rule of law; and in any event,
<PAGE> 29
(b) until court approval has been granted with respect to such
indemnification.
The determination of any action, suit or proceeding by judgment, order,
settlement, conviction or otherwise shall not, of itself, create a presumption
that the person did not act honestly and in good faith and in the best interests
of the Company and did not exercise the care, diligence and skill of a
reasonably prudent person and, with respect to any criminal action or
proceeding, did not have reasonable grounds to believe that his conduct was
lawful.
22.2
The Company shall indemnify any person other than a director in respect of any
loss, damage, costs or expenses whatsoever incurred by him while acting as an
officer, employee or agent for the Company unless such loss, damage, costs or
expenses shall arise out of failure to comply with instructions, wilful act or
default or fraud by such person in any of which events the Company shall only
indemnify such person if the directors, in their absolute discretion, so decide
or the Company by ordinary resolution shall so direct.
22.3
The indemnification provided by this Part shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under any
other Part, or any valid and lawful agreement, vote of members or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
ensure to the benefit of the heirs, executors and administrators of such person.
The indemnification provided by this Article shall not be exclusive of any
powers, rights, agreements or undertakings which may be legally permissible or
authorized by or under any applicable law. Notwithstanding any other provisions
set forth in this Pact, the indemnification authorized by this Part shall be
applicable only to the extent that any such indemnification shall not duplicate
indemnity or reimbursement which that person has received or shall receive
otherwise than under this Part.
22.4
The directors are authorized from time to time to cause the Company to give
indemnities to any director, officer, employee, agent or other person who has
undertaken or is about to undertake any liability on behalf of the Company or
any corporation controlled by it. The failure of a director or officer of the
Company to comply with the provisions of the Company Act, the Memorandum or
these Articles shall not invalidate any indemnity to which he is entitled under
this Part.
22.5
Subject to the Company Act, no director or officer or employee for the time
being of the Company shall be liable for the acts, receipts, neglects or
defaults of any other director or officer or employee, or for joining in any
receipt or act for conformity, or for any loss, damage or expense happening to
the Company through the insufficiency or deficiency of any security in or upon
which any of the monies of or belonging to the Company shall be invested or for
any loss or damages arising from the bankruptcy, insolvency, or tortious act of
any person, firm or corporation with whom or which any monies, securities or
effects shall be lodged or deposited or for any loss occasioned by any error of
judgment or oversight on his part or for any other loss, damage or misfortune
whatever which may happen in the execution of the duties of his respective
office or trust or in relation thereto unless the same shall happen by or
through his own wilful act or default, negligence, breach of trust or breach of
duty.
22.6
Directors may rely upon the accuracy of any statement of fact represented by an
officer of the Company to be correct or upon statements in a written report of
the auditor of the Company and shall not be responsible or held liable for any
loss or damage resulting from the paying of any dividends or otherwise acting in
good faith upon any such statement.
22.7
The directors may cause the Company to purchase and maintain insurance for the
benefit of any person who is or was a director, officer, employee or agent of
the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, a partnership, joint venture,
trust or other enterprise and his heirs and representatives against any
liability incurred by him as a director, officer, employee or agent.
<PAGE> 30
FULL NAME(S), ADDRESS, AND OCCUPATION(S) OF SUBSCRIBERS
- --------------------------------------------------------------------------------
Jaswinder Parmar, Computer Programmer /s/ JASWINDER PARMAR
84th. Ave 15020 -----------------------------
Surrey, BC
V3S 8H5
Ranjit Bal, Businessman /s/ RANJIT BAL
5559 Laurel St. -----------------------------
Burnaby, BC
V5G 1N1
- --------------------------------------------------------------------------------
Dated the 2 day of June, 1999
<PAGE> 31
FORM 3
(Section 8)
PROVINCE OF BRITISH COLUMBIA
COMPANY ACT
NOTICE OF OFFICES
The offices of the undermentioned Company are located as follows
NAME OF THE COMPANY: CYBER-WEB SYSTEMS INC.
REGISTERED OFFICE: 84th. Ave 15020
Surrey, British Columbia
V3S 8H5
RECORDS OFFICE: 84th. Ave 15020
Surrey, British Columbia
V3S 8H5
Dated the 2 day of June, 1999
(Signature) /s/ RANJIT BAL
-------------------------
(Relationship to Co.) SUBSCRIBER
<PAGE> 1
EXHIBIT 2.6
ARTICLES OF INCORPORATION OF URSAT COMMUNICATIONS, INC.,
A NEVADA CORPORATION
<PAGE> 2
EXHIBIT 2.6
[STAMP] ARTICLES OF INCORPORATION
OF
URSAT COMMUNICATIONS, INC.
A NEVADA CORPORATION
I, the undersigned, being the original incorporator herein named, for the
purpose of forming a corporation under the General Corporation Laws of the
State of Nevada, to do business both within and without the state of Nevada, do
make and file these Articles of Incorporation, hereby declaring and certifying
that the facts herein stated are true:
ARTICLE I
NAME
The name of the corporation is URSAT COMMUNICATIONS, INC.
ARTICLE II
RESIDENT AGENT & REGISTERED OFFICE
Section 2.01. Resident Agent. The name and address of the Resident Agent
for service of process is Nevada Corporate Headquarters, Inc., 5300 West Sahara,
Suite 101, Las Vegas, Nevada 89146. Mailing address: P.O. Box 27740, Las Vegas,
NV 89126.
Section 2.02. Registered Office. The address of its Registered Office is
5300 West Sahara, Suite 101, Las Vegas, Nevada 89146.
Section 2.03. Other Offices. The Corporation may also maintain offices for
the transaction of any business at such other places within or without the
State of Nevada as it may from time to time determine. Corporate business of
every kind and nature may be conducted, and meetings of directors and
stockholders held outside the State of Nevada with the same effect as if in the
State of Nevada.
ARTICLE III
PURPOSE
The corporation is organized for the purpose of engaging in any lawful
activity, within or without the State of Nevada.
ARTICLE IV
SHARES OF STOCK
Section 4.01 Number and Class. The total number of shares of authorized
capital stock of the Corporation shall consist of a single class of twenty-five
thousand (25,000) shares of common stock, no par value.
The Common Stock may be issued from time to time without action by the
stockholders. The Common Stock may be issued for such consideration as
may be fixed from time to time by the Board of Directors.
<PAGE> 3
The Board of Directors may issue such shares of Common Stock in one or more
series, with such voting powers, designations, preferences and rights or
qualifications, limitations or restrictions thereof as shall be stated in the
resolution or resolutions adopted by them.
Section 4.02. No Preemptive Rights. Holders of the Common Stock of the
corporation shall not have any preference, preemptive right, or right of
subscription to acquire any shares of the corporation authorized, issued or
sold, or to be authorized, issued or sold, and convertible into shares of the
Corporation, nor to any right of subscription thereto, other than to the extent,
if any, the Board of Directors may determine from time to time.
Section 4.03. Non-Assessability of Shares. The Common Stock of the
corporation, after the amount of the subscription price has been paid, in money,
property or services, as the directors shall determine, shall not be subject to
assessment to pay the debts of the corporation, nor for any other purpose, and
no stock issued as fully paid shall ever be assessable or assessed, and the
Articles of Incorporation shall not be amended in this particular.
ARTICLE V
DIRECTORS
Section 5.01. Governing Board. The members of the Governing Board of the
Corporation shall be styled as directors.
Section 5.02. Initial Board of Directors. The initial Board of Directors
shall consist of one (1) member. The name and address of the initial member of
the Board of Directors is as follows:
NAME ADDRESS
Cort W. Christie P.O. Box 27740
Las Vegas, Nevada 89126
This individual shall serve as Director until the first annual meeting of the
stockholders or until his successors) shall have been elected and qualified.
Section 5.03. Change in Number of Directors. The number of directors may be
increased or decreased by a duly adopted amendment to the Bylaws of the
corporation.
ARTICLE VI
INCORPORATOR
The name and address of the incorporator is Nevada Corporate Headquarters,
Inc., P.O. Box 27740, Las Vegas, Nevada 89126.
ARTICLE VII
PERIOD OF DURATION
The corporation is to have a perpetual existence.
<PAGE> 4
ARTICLE VIII
DIRECTORS' AND OFFICERS' LIABILITY
A director or officer of the corporation shall not be personally liable to
this corporation or its stockholders for damages for breach of fiduciary duty as
a director or officer, but this Article shall not eliminate or limit the
liability of a director or officer for (i) acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law or (ii) the unlawful
payment of distributions. Any repeal or modification of this Article by the
stockholders of the corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director or
officer of the corporation for acts or omissions prior to such repeal or
modification.
ARTICLE IX
INDEMNITY
Every person who was or is a party to, or is threatened to be made a party
to, or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he, or a person of
whom he is the legal representative, is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, or as its representative in a
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless to the fullest extent legally permissible under the laws of the
State of Nevada from time to time against all expenses, liability and loss
(including attorneys' fees, judgments, fines and amounts paid or to be paid in
settlement) reasonably incurred or suffered by him in connection therewith. Such
right of indemnification shall be a contract right which may be enforced in any
manner desired by such person. The expenses of officers and directors incurred
in defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be indemnified by the
corporation. Such right of indemnification shall not be exclusive of any other
right which such directors, officers or representatives may have or hereafter
acquire, and, without limiting the generality of such statement, they shall be
entitled to their respective rights of indemnification under any bylaw,
agreement, vote of stockholders, provision of law, or otherwise, as well as
their rights under this Article.
Without limiting the application of the foregoing, the stockholders or
Board of Directors may adopt by-laws from time to time with respect to
indemnification, to provide at all times the fullest indemnification permitted
by the laws of the State of Nevada, and may cause the corporation to purchase
and maintain insurance on behalf of any person who is or was a director or
officer of the corporation, or is or was serving at the request of the
corporation as director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other
<PAGE> 5
enterprises against any liability asserted against such person and incurred in
any such capacity or arising out of such status, whether or not the corporation
would have the power to indemnify such person.
The indemnification provided in this Article shall continue as to a person
who has ceased to be a director, officer, employee or agent, and shall inure to
the benefit of the heirs, executors and administrators of such person.
ARTICLE X
AMENDMENTS
Subject at all times to the express provisions of Section 4.03 which cannot
be amended, this corporation reserves the right to amend, alter, change, or
repeal any provision contained in these Articles of Incorporation or its Bylaws,
in the manner now or hereafter prescribed by statute or by these Articles of
Incorporation or said Bylaws, and all rights conferred upon the stockholders are
granted subject to this reservation.
ARTICLE XI
POWERS OF DIRECTORS
In furtherance and not in limitation of the powers conferred by statute the
Board of Directors is expressly authorized:
(1)Subject to the Bylaws, if any, adopted by the stockholders, to make,
alter or repeal the Bylaws of the corporation;
(2)To authorize and cause to be executed mortgages and liens, with or
without limit as to amount, upon the real and personal property of the
corporation;
(3)To authorize the guaranty by the corporation of securities, evidences of
indebtedness and obligations of other persons, corporations and business
entities;
(4)To set apart out of any of the funds of the corporation available for
distributions a reserve or reserves for any proper purpose and to abolish any
such reserve;
(5) By resolution, to designate one or more committees, each committee to
consist of at least one director of the corporation, which, to the extent
provided in the resolution or in the Bylaws of the corporation, shall have and
may exercise the powers of the Board of Directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be stated in the Bylaws of the
corporation or as may be determined from time to time by resolution adopted by
the Board of Directors; and
(6) To authorize the corporation by its officers or agents to exercise all
such powers and to do all such acts and things as may be exercised or done by
the corporation, except and to the extent that any such statute shall require
action by the stockholders of the corporation with regard to the exercising of
any such power or the doing of any such act or thing.
In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the Board of Directors may exercise all such
powers and do all such acts and things as may be exercised or done by the
corporation, except as otherwise provided herein and by law.
<PAGE> 6
IN WITNESS WHEREOF, I have hereunto set my hand this 17TH day of
AUGUST, 1999, hereby declaring and certifying that the facts stated hereinabove
are true.
/s/ CORT W. CHRISTIE
-------------------------------
CORT W. CHRISTIE
(FOR NEVADA CORPORATE HEADQUARTERS, INC.)
ACKNOWLEDGEMENT
STATE OF NEVADA)
)
COUNTY OF CLARK)
On this 17TH day of AUGUST, 1999, personally appeared before me, a Notary
Public (or judge or other authorized person, as the case may be), CORT W.
CHRISTIE, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her authorized
capacity, and that by his/her signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
[NOTARY SEAL]
/s/ LYNN OSMERA
----------------------------------
I, NEVADA CORPORATE HEADQUARTERS, INC. hereby accept as resident Agent for the
previously named Corporation on 17TH day of AUGUST, 1999.
/s/ [ILLEGIBLE]
----------------------------------
On this 17TH day of AUGUST, 1999 Office Administrator
<PAGE> 1
EXHIBIT 2.7
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
OF URSAT COMMUNICATIONS, INC. CHANGING NAME
TO INTERACTIVE RADIO CORPORATION
<PAGE> 2
[STATE OF NEVADA LETTERHEAD]
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
FOR PROFIT NEVADA CORPORATIONS
(Pursuant to NRS 78.380 -- Before Issuance of Stock)
-Remit in Duplicate-
1. Name of Corporation URSAT COMMUNICATIONS, INC.
2. The articles have been amended as follows (provide article numbers, if
available): ARTICLE I: The name of the corporation shall be
INTERACTIVE RADIO CORPORATION.
3. The undersigned declare that they constitute at least two-thirds of
the incorporators (check) ___, or of the board of directors (check)
X
---
4. The date upon which the original articles of incorporation were filed
with the Secretary of State: 8/17/99
5. The undersigned affirmatively declare that to the date of this
certificate, no stock of the corporation has been issued.
6. Signatures (all signatures must be acknowledged):
<TABLE>
<S> <C>
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
------------------------------------- ------------------------------------
SIGNATURE SIGNATURE
Province of: British Columbia Province of: British Columbia
------------ ------------
County of: Vancouver County of: Vancouver
---------------- ----------------
This instrument was acknowledged before me on This instrument was acknowledged before me on
September 7, 1999, by September 7, 1999, by
- ----------- ----- ----------- -----
[ILLEGIBLE] (Name of Person) As: [ILLEGIBLE] (Name of Person) As:
- ----------- -----------
President and Chief Financial Officer (as Chief Financial Officer (as
- ------------------------------------- -----------------------
designated to sign this certificate) of designated to sign this certificate) of
URSAT COMMUNICATIONS, INC. URSAT COMMUNICATIONS, INC.
- -------------------------- --------------------------
(name on behalf of whom instrument was executed) (name on behalf of whom instrument was executed)
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
- ----------------------------------------- -----------------------------------------
NOTARY PUBLIC SIGNATURE NOTARY PUBLIC SIGNATURE
</TABLE>
[NOTARY SEAL] [NOTARY SEAL]
IMPORTANT: Failure to include any of the above information and remit the proper
fees may cause this filing to be rejected.
<PAGE> 1
EXHIBIT 2.8
Bylaws of Ursat Communications, Inc.,
a Nevada Corporation
<PAGE> 2
EXHIBIT 2.8
BYLAWS
OF
URSAT COMMUNICATIONS, INC.
A Nevada Corporation
ARTICLE I
Stockholders
Section 1. Annual Meeting. Annual meetings of the stockholders,
commencing with the year 1999, shall be held on the 17th day of August each year
if not a legal holiday and, if a legal holiday, then on the next secular day
following, or at such other time as may be set by the Board of Directors from
time to time, at which the stockholders shall elect by vote a Board of Directors
and transact such other business as may properly be brought before the meeting.
Section 2. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Articles of Incorporation, may be called by the President or the Secretary by
resolution of the Board of Directors or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose of the proposed meeting.
Section 3. Place of Meetings. All annual meetings of the stockholders
shall be held at the registered office of the corporation or at such other place
within or without the State of Nevada as the directors shall determine. Special
meetings of the stockholders may be held at such time and place within or
without the State of Nevada as shall be stated in the notice of the meeting, or
in a duly executed waiver of notice thereof. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
<PAGE> 3
Section 4. Quorum; Adjourned Meetings. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the Articles of Incorporation. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
the power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 5. Voting. Each stockholder of record of the corporation
holding stock which is entitled to vote at this meeting shall be entitled at
each meeting of stockholders to one vote for each share of stock standing in his
name on the books of the corporation. Upon the demand of any stockholder, the
vote for directors and the vote upon any question before the meeting shall be by
ballot.
When a quorum is present or represented at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall be sufficient to elect directors or to decide any
question brought before such meeting, unless the question is one upon which by
express provision of the statutes or of the Articles of Incorporation, a
different vote is required in which case such express provision shall govern and
control the decision of such question.
Section 6. Proxies. At any meeting of the stockholders any stockholder
may be represented and vote by a proxy or proxies appointed by an instrument in
writing. In the event that any such instrument in writing shall designate two or
more persons to act as proxies, a majority of such persons present at the
meeting, or, if only one shall be present, then that one shall have and may
exercise all of the powers conferred by such written instrument upon all of the
persons so designated unless the instrument shall otherwise provide. No proxy or
power of attorney to vote shall be used to vote at a meeting of the stockholders
unless it shall have been filed with the secretary of the meeting. All questions
regarding the qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by the inspectors of election
who shall be appointed by the Board of Directors, or if not so appointed, then
by the presiding officer of the meeting.
Section 7. Action Without Meeting. Any action which may be taken by the
vote of the stockholders at a meeting may be taken without a meeting if
authorized by the written consent of stockholders holding at least a majority of
the voting power, unless the provisions of the statutes or of the Articles of
Incorporation require a greater proportion of voting power to authorize such
action in which case such greater proportion of written consents shall be
required.
<PAGE> 4
ARTICLES II
Directors
Section 1. Management of Corporation. The business of the corporation
shall be managed by its Board of Directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the Articles of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
Section 2. Number, Tenure, and Qualifications. The number of directors
which shall constitute the whole board shall be at least one. The number of
directors may from time to time be increased or decreased to not less than one
nor more than fifteen. The directors shall be elected at the annual meeting of
the stockholders and except as provided in Section 2 of this Article, each
director elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 3. Vacancies. Vacancies in the Board of Directors including
those caused by an increase in the number of directors, may be filled by a
majority of the remaining directors, though less than a quorum, or by a sole
remaining director, and each director so elected shall hold office until his
successor is elected at an annual or a special meeting of the stockholders. The
holders of two-thirds of the outstanding shares of stock entitled to vote may at
any time peremptorily terminate the term of office of all or any of the
directors by vote at a meeting called for such purpose or by a written statement
filed with the secretary or, in his absence, with any other officer. Such
removal shall be effective immediately, even if successors are not elected
simultaneously.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in case of the death, resignation or removal of any directors, or if the
authorized number of directors be increased, or if the stockholders fail at any
annual or special meeting of stockholders at which any director or directors are
elected to elect the full authorized number of directors to be voted for at that
meeting.
If the Board of Directors accepts the resignation of a director
tendered to take effect at a future time, the Board or the stockholders shall
have power to elect a successor to take office when the resignation is to become
effective.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of his term of office.
<PAGE> 5
Section 4. Annual and Regular Meetings. Regular meetings of the Board
of Directors shall be held at any place within or without the State which has
been designated from time to time by resolution of the Board or by written
consent of all members of the Board. In the absence of such designation regular
meetings shall be held at the registered office of the corporation. Special
meetings of the Board may be held either at a place so designated or at the
registered office.
Regular meetings of the Board of Directors may be held without call or
notice at such time and at such place as shall from time to time be fixed and
determined by the Board of Directors.
Section 5. First Meeting. The first meeting of each newly elected Board
of Directors shall be held immediately following the adjournment of the meeting
of stockholders and at the place thereof. No notice of such meeting shall be
necessary to the directors in order legally to constitute the meeting, provided
a quorum be present. In the event such meeting is not so held, the meeting may
be held at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors.
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman or the President or by any Vice-President or by
any two directors.
Written notice of the time and place of special meetings shall be
delivered personally to each director, or sent to each director by mail or by
other form of written communication, charges prepaid, addressed to him at his
address as it is shown upon the records or if such address is not readily
ascertainable, at the place in which the meetings of the directors are regularly
held. In case such notice is mailed or telegraphed, it shall be deposited in the
United States mail or delivered to the telegraph company at least three (3) days
prior to the time of the holding of the meeting. In case such notice is hand
delivered as above provided, it shall be so delivered at least twenty-four (24)
hours prior to the time of the holding of the meeting. Such mailing,
telegraphing or delivery as above provided shall be due, legal and personal
notice to such director.
Section 7. Business of Meetings. The transactions of any meeting of the
Board of Directors, however called and noticed or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice, if a
quorum be present, and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, or a consent to holding
such meeting, or an approval of the minutes thereof. All such waivers, consents
or approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
<PAGE> 6
Section 8. Quorum: Adjourned Meetings. A majority of the authorized
number of directors shall be necessary to constitute a quorum for the
transaction of business, except to adjourn as hereinafter provided. Every act or
decision done or made by a majority of the directors present at a meeting duly
held at which a quorum is present shall be regarded as the act of the Board of
Directors, unless a greater number be required by law or by the Articles of
Incorporation. Any action of a majority, although not at a regularly called
meeting, and the record thereof, if assented to in writing by all of the other
members of the Board shall be as valid and effective in all respects as if
passed by the Board in regular meeting.
A quorum of the directors may adjourn any directors meeting to meet
again at a stated day and hour; provided, however, that in the absence of a
quorum, a majority of the directors present at any directors meeting, either
regular or special, may adjourn from time to time until the time fixed for the
next regular meeting of the Board.
Notice of the time and place of holding an adjourned meeting need not
be given to the absent directors if the time and place be fixed at the meeting
adjourned.
Section 9. Committees. The Board of Directors may, by resolution
adopted by a majority of the whole Board, designate one or more committees of
the Board of Directors, each committee to consist of at least one or more of the
directors of the corporation which, to the extent provided in the resolution,
shall have and may exercise the power of the Board of Directors in the
management of the business and affairs of the corporation and may have power to
authorize the seal of the corporation to be affixed to all papers which may
require it. Such committee or committees shall have such name or names as may be
determined from time to time by the Board of Directors. The members of any such
committee present at any meeting and not disqualified from voting may, whether
or not they constitute a quorum, unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified
member. At meetings of such committees, a majority of the members or alternate
members shall constitute a quorum for the transaction of business, and the act
of a majority of the members or alternate members at any meeting at which there
is a quorum shall be the act of the committee.
The committees shall keep regular minutes of their proceedings and
report the same to the Board of Directors.
Section 10. Action Without Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if a written consent thereto is signed by all
members of the Board of Directors or of such committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the Board or
committee.
<PAGE> 7
Section 11. Special Compensation. The directors may be paid their
expenses of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like reimbursement and
compensation for attending committee meetings.
ARTICLE III
Notices
Section 1. Notice of Meetings. Notices of meetings shall be in writing
and signed by the President or a Vice-President or the Secretary or an Assistant
Secretary or by such other person or persons as the directors shall designate.
Such notice shall state the purpose or purposes for which the meeting is called
and the time and the place, which may be within or without this State, where it
is to be held. A copy of such notice shall be either delivered personally to or
shall be mailed, postage prepaid, to each stockholder of record entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before such
meeting. If mailed, it shall be directed to a stockholder at his address as it
appears upon the records of the corporation and upon such mailing of any such
notice, the service thereof shall be complete and the time of the notice shall
begin to run from the date upon which such notice is deposited in the mail for
transmission to such stockholder. Personal delivery of any such notice to any
officer of a corporation or association, or to any member of a partnership shall
constitute delivery of such notice to such corporation, association or
partnership. In the event of the transfer of stock after delivery of such notice
of and prior to the holding of the meeting it shall not be necessary to deliver
or mail notice of the meeting to the transferee.
Section 2. Effect of Irregularly Called Meetings. Whenever all parties
entitled to vote at any meeting, whether of directors or stockholders, consent,
either by a writing on the records of the meeting or filed with the secretary,
or by presence at such meeting and oral consent entered on the minutes, or by
taking part in the deliberations at such meeting without objection, the doings
of such meeting shall be as valid as if had at a meeting regularly called and
noticed, and at such meeting any business may be transacted which is not
excepted from the written consent or to the consideration of which no objection
for want of notice is made at the time, and if any meeting be irregular for want
of notice or of such consent, provided a quorum was present at such meeting, the
proceedings of said meeting may be ratified and approved and rendered likewise
valid and the irregularity or defect therein waived by a writing signed by all
parties having the right to vote at such meeting; and such consent or approval
of stockholders may be by proxy or attorney, but all such proxies and powers of
attorney must be in writing.
<PAGE> 8
Section 3. Waiver of Notice. Whenever any notice whatever is required
to be given under the provisions of the statutes, of the Articles of
Incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE IV
Officers
Section 1. Election. The officers of the corporation shall be chosen by
the Board of Directors and shall be a President, a Secretary and a Treasurer,
none of whom need be directors. Any person may hold two or more offices. The
Board of Directors may appoint a Chairman of the Board, Vice-Chairman of the
Board, one or more vice presidents, assistant treasurers and assistant
secretaries.
Section 2. Chairman of the Board. The Chairman of the Board shall
preside at meetings of the stockholders and the Board of Directors, and shall
see that all orders and resolutions of the Board of Directors are carried into
effect.
Section 3. Vice-Chairman of the Board. The Vice-Chairman shall, in the
absence or disability of the Chairman of the Board, perform the duties and
exercise the powers of the Chairman of the Board and shall perform such other
duties as the Board of Directors may from time to time prescribe.
Section 4. President. The President shall be the chief executive
officer of the corporation and shall have active management of the business of
the corporation. He shall execute on behalf of the corporation all instruments
requiring such execution except to the extent the signing and execution thereof
shall be expressly designated by the Board of Directors to some other officer or
agent of the corporation.
Section 5. Vice-President. The Vice-President shall act under the
direction of the President and in the absence or disability of the President
shall perform the duties and exercise the powers of the President. They shall
perform such other duties and have such other powers as the President or the
Board of Directors may from time to time prescribe. The Board of Directors may
designate one or more Executive Vice-Presidents or may otherwise specify the
order of seniority of the Vice-Presidents. The duties and powers of the
President shall descend to the Vice-Presidents in such specified order of
seniority.
<PAGE> 9
Section 6. Secretary. The Secretary shall act under the direction of
the President. Subject to the direction of the President he shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record the proceedings. He shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the President or the Board of
Directors.
Section 7. Assistant Secretaries. The Assistant Secretaries shall act
under the direction of the President. In order of their seniority, unless
otherwise determined by the President or the Board of Directors, they shall, in
the absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary. They shall perform such other duties and have such
other powers as the President or the Board of Directors may from time to time
prescribe.
Section 8. Treasurer. The Treasurer shall act under the direction of
the President. Subject to the direction of the President he shall have custody
of the corporate funds and securities and shall keep full and accurate accounts
of receipts and disbursements in books belonging to the corporation and shall
deposit all monies and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the corporation as may be ordered by
the President or the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
corporation.
If required by the Board of Directors, he shall give the corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of his office
and for the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control
belonging to the corporation.
Section 9. Assistant Treasurers. The Assistant Treasurers in the order
of their seniority, unless otherwise determined by the President or the Board of
Directors, shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer. They shall perform such other
duties and have such other powers as the President or the Board of Directors may
from time to time prescribe.
Section 10. Compensation. The salaries and compensation of all officers
of the corporation shall be fixed by the Board of Directors.
<PAGE> 10
Section 11. Removal; Resignation. The officers of the corporation shall
hold office at the pleasure of the Board of Directors. Any officer elected or
appointed by the Board of Directors may be removed at any time by the Board of
Directors. Any vacancy occurring in any office of the corporation by death,
resignation, removal or otherwise shall be filled by the Board of Directors.
ARTICLE V
Capital Stock
Section 1. Certificates. Every stockholder shall be entitled to have a
certificate signed by the President or a Vice-President and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation, certifying the number of shares owned by him in the corporation. If
the corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the designations, preferences and relative,
participating, optional or other special rights of the various classes of stock
or series thereof and the qualifications, limitations or restrictions of such
rights, shall be set forth in full or summarized on the face or back of the
certificate, which the corporation shall issue to represent such stock.
If a certificate is signed (1) by a transfer agent other than the
corporation or its employees or (2) by a registrar other than the corporation or
its employees, the signatures of the officers of the corporation may be
facsimiles. In case any officer who has signed or whose facsimile signature has
been placed upon a certificate shall cease to be such officer before such
certificate is issued, such certificate may be issued with the same effect as
though the person had not ceased to be such officer. The seal of the
corporation, or a facsimile thereof, may, but need not be, affixed to
certificates of stock.
Section 2. Surrendered; Lost or Destroyed Certificates. The Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the corporation alleged to
have been lost or destroyed upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost or destroyed.
<PAGE> 11
Section 3. Replacement Certificates. Upon surrender to the corporation
or the transfer agent of the corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation, if it is
satisfied that all provisions of the laws and regulations applicable to the
corporation regarding transfer and ownership of shares have been complied with,
to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 4. Record Date. The Board of Directors may fix in advance a
date not exceeding sixty (60) days nor less than ten (10) days preceding the
date of any meeting of stockholders, or the date for the payment of any
distribution, or the date for the allotment of rights, or the date when any
change or conversion or exchange of capital stock shall go into effect, or a
date in connection with obtaining the consent of stockholders for any purpose,
as a record date for the determination of the stockholders entitled to notice of
and to vote at any such meeting, and any adjournment thereof, or entitled to
receive payment of any such distribution, or to give such consent, and in such
case, such stockholders, and only such stockholders as shall be stockholders of
record on the date so fixed, shall be entitled to notice of and to vote at such
meeting, or any adjournment thereof, or to receive payment of such distribution,
or to receive such allotment of rights, or to exercise such rights, or to give
such consent, as the case may be, notwithstanding any transfer of any stock on
the books of the corporation after any such record date fixed as aforesaid.
Section 5. Registered Owner. The corporation shall be entitled to
recognize the person registered on its books as the owner of shares to be the
exclusive owner for all purposes including voting and distribution, and the
corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Nevada.
ARTICLE VI
General Provisions
Section 1. Registered Office. The registered office of this corporation
shall be in the County of Clark, State of Nevada.
The corporation may also have offices at such other places both within
and without the State of Nevada as the Board of Directors may from time to time
determine or the business of the corporation may require.
<PAGE> 12
Section 2. Distributions. Distributions upon the capital stock of the
corporation, subject to the provisions of the Articles of Incorporation, if any,
may be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Distributions may be paid in cash, in property or in shares of
the capital stock, subject to the provisions of the Articles of Incorporation.
Section 3. Reserves. Before payment of any distribution, there may be
set aside out of any funds of the corporation available for distributions such
sum or sums as the directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing
distributions or for repairing or maintaining any property of the corporation or
for such other purpose as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 4. Checks; Notes. All checks or demands for money and notes of
the corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
Section 5. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
Section 6. Corporate Seal. The corporation may or may not have a
corporate seal, as may from time to time be determined by resolution of the
Board of Directors. If a corporate seal is adopted, it shall have inscribed
thereon the name of the corporation and the words "Corporate Seal" and "Nevada."
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or in any manner reproduced.
ARTICLE VII
Indemnification
Section 1. Indemnification of Officers and Directors, Employees and
Other Persons. Every person who was or is a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or a
person of whom he is the legal representative is or was a director or officer of
the corporation or is or was serving at the request of the corporation or for
its benefit as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise, shall
be indemnified and held harmless to the fullest extent legally permissible under
the general corporation law of the State of Nevada from time to time against all
expenses, liability and loss (including attorneys' fees, judgments, fines and
amounts paid or to be paid in settlement) reasonably incurred or suffered by him
in connection therewith. The expenses of officers and directors incurred in
<PAGE> 13
defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be indemnified by the
corporation. Such right of indemnification shall be a contract right which may
be enforced in any manner desired by such person. Such right of indemnification
shall not be exclusive of any other right which such directors, officers or
representatives may have or hereafter acquire and, without limiting the
generality of such statement, they shall be entitled to their respective rights
of indemnification under any bylaw, agreement, vote of stockholders, provision
of law or otherwise, as well as their rights under this Article.
Section 2. Insurance. The Board of Directors may cause the corporation
to purchase and maintain insurance on behalf of any person who is or was a
director or officer of the corporation, or is or was serving at the request of
the corporation as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred IN any such
capacity or arising out of such status, whether or not the corporation would
have the power to indemnify such person.
Section 3. Further Bylaws. The Board of Directors may from time to time
adopt further Bylaws with respect to indemnification and may amend these and
such Bylaws to provide at all times the fullest indemnification permitted by the
General Corporation Law of the State of Nevada.
ARTICLE VIII
Amendments
Section 1. Amendments by Stockholders. The Bylaws may be amended by a
majority vote of all the stock issued and outstanding and entitled to vote for
the election of directors of the stockholders, provided notice of intention to
amend shall have been contained in the notice of the meeting.
Section 2. Amendments by Board of Directors. The Board of Directors by
a majority vote of the whole Board at any meeting may amend these Bylaws,
including Bylaws adopted by the stockholders, but the stockholders may from time
to time specify particular provisions of the Bylaws which shall not be amended
by the Board of Directors.
<PAGE> 14
APPROVED AND ADOPTED this 17th day of August, 1999.
---- ------
(#) (Month)
X /s/ [ILLEGIBLE] (Sign)
-----------------------------------
Secretary
CERTIFICATE OF SECRETARY
I hereby certify that I am the Secretary of URSAT COMMUNICATIONS, INC.,
---------------------------
and that the foregoing Bylaws, constitute the code of Bylaws of URSAT
-----
COMMUNICATIONS, INC., as duly adopted at a regular meeting of the Board of
- ---------------------
Directors of the corporation.
DATED this 17th day of August, 1999.
---- ------
(#) (Month)
<PAGE> 1
EXHIBIT 6.1
MEMORANDUM OF UNDERSTANDING/JOINT VENTURE AGREEMENT
BETWEEN OMICRON TECHNOLOGIES, INC. AND VIASPACE TECHNOLOGIES LLC
<PAGE> 2
Exhibit 6.1
MEMORANDUM OF UNDERSTANDING (MOU) made this 7th day of August, 1998.
BETWEEN:
OMICRON TECHNOLOGIES, INC., a US company incorporated under the
laws of the state of Florida, U.S.A., having its registered
office in Miami, Florida.
(hereinafter called the "Omicron")
OF THE FIRST PART
AND:
VIASPACE TECHNOLOGIES LLC, a company incorporated under the laws
of the state of Delaware, U.S.A., having its registered office in
Pasadena, California.
(hereinafter called the "ViaSpace");
OF THE SECOND PART
JOINT VENTURE AGREEMENT
WHEREAS Omicron, a public company listed on the NASDAQ Over the Counter
Bulletin Board Stock Exchange, is seeking participation in the acquisitions and
development of new high technologies.
AND WHEREAS ViaSpace is a technology incubation company whose charter is to
develop and commercialize new high technologies.
Omicron and ViaSpace have agreed to form a joint venture for the
development of certain applications of the Active Pixel Sensor ("APS") developed
by the Jet Propulsion Laboratory, subject to the terms and conditions expressed
in this agreement, as follows:
1.0 Representations and Warranties
1.1 Omicron represents and warrants that:
- It will pay a non-refundable $250,000 (Two Hundred Fifty Thousand
U.S. Dollars) to the joint venture upon signing this MOU.
- It will provide funding for a minimum of 3.75 million dollars
(U.S.) (including the initial $250,000 referred to above) for the
costs associated in developing Chosen (to be defined within 30
days by Omicron, and agreed upon by ViaSpace. On the scope of
the commercial application and development costs of the
prototypes) technologies from their current
<PAGE> 3
2
status to commercial prototype. This funding is to be provided in
accordance with the following payment schedule:
<TABLE>
<CAPTION>
Time Acquisition Cost Development Cost Total
- ---- ---------------- ---------------- -----
<S> <C> <C> <C>
Today 250K 0K 250K
30 Days 250K 0K 250K
45 Days 0K 250K 250K
60 Days 250K 0K 250K
90 Days 0K 250K 250K
120 Days 750K 0K 750K
180 Days 750K 500K 1,250K
270 Days 0K 500K 500K
TOTALS 2,250K 1,500K 3,750K
- -------- ----- ----- -----
360 Days VIASPACE PRODUCES
THE PROTOTYPES
</TABLE>
1.1.1 Failure to meet payment schedule dates will vend this
agreement null and void. Any unused funds allocated for
development costs will be refunded to Omicron by ViaSpace. All
other payments received from Omicron by ViaSpace are
non-refundable. Omicron shall hold no equity, or portion of,
in the technology until such time that all acquisition and
development payments are received in full.
1.2 VIASPACE REPRESENTS AND WARRANTS THAT:
- It has been granted the option to license the APS technology from
Caltech.
- Based on a mutually agreed upon price in the future, ViaSpace
will sell to Omicron the first right of refusal for ViaSpace's
interest in the Joint Venture, and/or the right for developing
new market applications for the APS technology.
2.0 MANAGEMENT OF THE JOINT VENTURE
The Joint Venture shall be managed by ViaSpace and Omicron.
<PAGE> 4
3
3.0 THE JOINT VENTURE
Upon signing of this agreement, a joint venture will be formed. The
interest of the parties shall be as follows:
o Omicron shall be entitled to receive 40% of all profits of the Joint
Venture, and ViaSpace shall be entitled to receive up to 60% of the
profits
o Royalties payments to JPL and Caltech will be paid by the Joint
Venture prior to sharing profits between ViaSpace and Omicron.
4.0 NOTICES
Any Public Notices or Announcements, Promotional Material and Investor
Relations Material under the provisions of this agreement shall be approved
by ViaSpace in writing prior to circulating.
5.0 FURTHER AGREEMENTS
The parties agree that they shall enter into such further and other
documents, including formal agreements that may be required or desired in
order to give full force and effect to this agreement. Notwithstanding that
the completion of further documents is contemplated, this agreement shall
constitute a valid and binding contract upon its execution.
IN WITNESS WHEREOF the Parties have just caused this Agreement to be duly
executed this 7th day of August, 1998.
OMICRON TECHNOLOGIES, IRE. VIASPACE TECHNOLOGIES LLC
1110 BRICKELL AVENUE, SUITE 430 1534 HIGHLAND AVENUE
MIAMI, FLORIDA 33131 GLENDALE, CALIFORNIA 91202
Per: /s/ Sak Narwal, CFO Per: /s/ Sam Shehayeb, CFO
--------------------- ----------------------
SAK NARWAL, CFO SHEHAYEB, CFO
<PAGE> 1
EXHIBIT 6.2
ADDENDUM TO MEMORANDUM OF UNDERSTANDING
DATED AUGUST 7, 1998
<PAGE> 2
Exhibit 6.2
ADDENDUM TO
MEMORANDUM OF UNDERSTANDING DATED AUGUST 7, 1998
Dated this 23rd day of September, 1998.
BETWEEN:
Omicron Technologies, Inc., a US company incorporated under the
laws of the State of Florida, USA having its registered office in
Miami, Florida.
(Hereinafter referred to as "Omicron")
OF THE FIRST PART
- -AND-
ViaSpace Technologies, LLC., a US company incorporated under the
laws of the State of Delaware having its registered office in
Pasadena, California.
(Hereinafter referred to as "ViaSpace")
OF THE SECOND PART
WHEREAS, Omicron and ViaSpace have entered into a Joint Venture
Agreement as set out in a Memorandum of Understanding (the "MOU") dated August
7, 1998.
AND WHEREAS, the parties hereto wish to amend certain provisions of the
MOU.
1. Paragraph 1.1.1 is replaced and amended to read as follows.
Failure to meet the aforementioned payment schedule is not considered a
breach of this agreement. Furthermore any and all funds advanced by
Omicron shall be treated as part of the acquisition cost of the APS and
APS Wireless technology which shall be addressed in a subsequent
agreement to be entered into by the Parties hereto.
2. Paragraph 1.2 is replaced and amended to read as follows:
The Company has been granted options to license APS and APS Wireless
technology (the "technology") from Caltech.
<PAGE> 3
Based on a mutually agreed upon price in the future, ViaSpace will sell to
Omicron the first right of refusal for ViaSpace's interest in the Joint
Venture and/or the right for developing new market applications for the
APS technology.
IN WITNESS WHEREOF the parties to this Agreement have executed this Agreement.
)
) Omicron Technologies, Inc.
)
)
)
__________________________ )per:________________________________
Witness ) Sak Narwal, CFO
)
) ViaSpace Technologies LLC
)
)
)
__________________________ )per:________________________________
Witness ) Sam Shehayeb, CFO
<PAGE> 1
EXHIBIT 6.3
WEBSITE SALE AND INTERNET CASINO ACCESS LICENSE AGREEMENT
<PAGE> 2
WEBSITE SALE AND
INTERNET CASINO ACCESS LICENSE AGREEMENT
This Website Sale and Internet Casino License Agreement ("Agreement") is entered
into as of this 4th day of June in the year of 1999, by and between Omicron
Technologies, Inc., a USA Corporation (the "Licensee") and GLOBAL INTERACTIVE,
LTD., a Nevis corporation (the "Licensor").
RECITALS
A. Licensor provides licensees with access through gateway routing pages on
the World Wide Web to an Internet casino website.
B. Licensor wishes to sell to Licensee a single Internet casino website
gateway which will direct Internet gamers entering through such gateway to
the Casino and license to Licensee the right to process Licensee's gateway
website customers activities through the Casino.
C. Licensee wishes to purchase from Licensor a single Internet casino website
gateway which will direct Internet gamers entering through such gateway to
the Casino and license from Licensor the right to process Licensee's
gateway website customers activities through the Casino.
AGREEMENT
In consideration of the foregoing and following terms, covenants, promises,
premises and conditions, and for other good and valuable consideration, the
sufficiency, adequacy and receipt of which are hereby acknowledged, the parties
hereby agree as follows:
1. Sale and License. Licensor hereby sells to Licensee the HTML source code to
an Internet website which points and routes persons "hitting" such website
through to the Casino. Such website is described in Exhibit B attached
hereto and incorporated herein by this reference. Further, Licensor hereby
licenses to Licensee the right to point and route customers of Licensee
accessing Licensee's website to the Casino, and the right to have Licensor
process such customers' transactions on the Casino, pursuant to the terms
of this Agreement and the Exhibits hereto.
2. Definitions. For purposes of this Agreement, the following terms shall have
the following meanings:
a. Casino. "Casino" shall mean the Internet casino web site to which
Licensee's gateway website will point and shall include the Internet
Casino games as chosen by Licensor.
b. Net Monthly Revenue. "Net Monthly Revenue" shall mean, for any given
calendar month, the total amount lost in the Casino by Licensee's
customers, less winnings by Licensee's customers.
c. Hardware. "Hardware" shall mean all the necessary computers, routers,
cabling, monitors, hard drives, back-up systems, and other equipment,
as determined by Licensor in its absolute discretion, that may be
required in order to properly store, distribute and run the Casino.
d. Downloadable Software. "Downloadable Software" shall mean the portion
of the Casino software that must be resident on a customer's computer
in order for the customer to access and play the Casino games.
Licensee shall also have access to sportsbook version of software,
adult version of software and JAVA games.
Page 1 of 11
<PAGE> 3
e. Master CD. "Master CD" shall mean a compact disc containing a version
of the Downloadable Software.
f. Customer Information. "Customer Information" shall mean all data
collected and stored on Licensee's Customers, including, without
limitation, name, address, phone and fax number, e-mail address,
amounts wagered and frequency of wagering.
g. Confidential Information. "Confidential Information" shall mean
material in the possession of Licensor or its agents which is not
generally available to or used by others or the utility or value of
which is not generally known or recognized as a standard practice,
whether or not the underlying details are in the public domain.
h. Customers. "Customers" shall mean any Casino visitor that conducts any
financial transaction within the casino.
3. Indemnification.
a. Limitation on Indemnification. Except as otherwise provided herein,
Licensee acknowledges and agrees that neither Licensor nor its agents,
nor any of their respective members, shareholders, directors,
officers, employees or representatives (collectively the "Licensor
Parties") will be liable to the Licensee or any of the Licensee's
customers for any special, indirect, consequential, punitive or
exemplary damages, or damages for lost profits or savings, in
connection with this Agreement, its performance or breach. If despite
the foregoing limitations, any of the Licensor Parties should become
liable to Licensee or any other person (a "Claimant"), the maximum
aggregate liability of the Licensor Parties shall be limited to the
lesser of the actual amount of loss or damage suffered by Claimant or
the sum of Licensee's fees payable by the Licensee to Licensor within
the 6 months prior to the loss.
b. Activities of Licensee. Licensee shall indemnify, defend and hold
harmless, Licensor and its agents and all Licensor Parties (the
"Indemnified Parties") from and against all damages, losses, costs and
expenses (including actual legal fees and costs), fines and
liabilities incurred by or awarded against any of the Indemnified
Parties in connection with Licensee's activities under this Agreement,
including, without limitation, claims brought by a person using or
relying on any advice given or publication produced and distributed by
Licensee.
4. Disruptions.
a. Temporary Disruptions. Licensee acknowledges that from time to time,
as a result of Hardware failure, supplier failures, or acts of God,
the services provided under this Agreement may be temporarily
disrupted. Licensee acknowledges and agrees that neither Licensor, its
agents nor any Licensor Parties will be liable to Licensee or any of
Licensee's customers for any special, indirect, consequential,
punitive or exemplary damages, or damages for loss of profits or
savings, in connection with these temporary disruptions. If services
are temporarily disrupted for a period of 72 consecutive hours or
more, the fees covered in sections shall be 7(b) and 9(c) shall be
reduced on a pro rata basis.
b. Government Issues. Licensor shall not be held liable for any damages
of any kind which result from government legislation or policy.
Page 2 of 11
<PAGE> 4
5. Conditions of License.
a. Ownership of Software. All right, title and interest in and to the
Casino software, and any copies thereof and all documentation, code
and logic, which describes and/or composes such software remains the
sole and exclusive property of Licensor or its agents, as the case may
be, pursuant to the terms of Licensor's agreement with its agents, if
any.
b. Force Majeur. Except as otherwise specifically provided herein,
Licensor and its agents shall not be responsible for failure of
performance of this Agreement due to causes beyond their control,
including, without limitation, work stoppages, fires, civil unrest,
riots, rebellions, acts of God and similar occurrences.
c. Casino Format. The Casino format shall remain standard as determined
in Licensor's sole discretion.
d. Non-Exclusive Agreement. Licensee acknowledges that this is a
non-exclusive agreement and that Licensor will sell World Wide Web
routing pages pointing to Licensor's Casino to as many other parties
as are willing to enter into a licensing agreement with Licensor.
6. Term and Termination.
a. Term. This Agreement shall commence and be deemed effective on the
date when fully executed (the "Effective Date"). This Agreement shall
remain in effect for a period of 3 years (the "Term") and shall be
automatically renewed indefinitely for additional 1 year terms unless
the Licensee or Licensor gives written notice of termination of this
Agreement to the non-terminating party at least 30 days prior to the
end of any then current term.
b. Failure to Pay Fees. Licensor may terminate this Agreement at any time
upon 10 days written notice if Licensee is more than 30 days in
arrears in paying any monthly fees or hosting fees due and owing to
Licensor after written demand for same.
c. Bankruptcy. Either party may terminate this Agreement at any time upon
10 days written notice if the other party is subject to a petition in
bankruptcy or ceases carrying on business for any reason for a period
of 180 days or more.
d. Termination for Breach. Licensee may terminate this Agreement at any
time upon 10 days notice if Licensor is materially in breach of this
Agreement for a period of more than 30 days. Licensor shall be allowed
to cure the breach during the notice period, thus pre-empting
Licensee's ability to terminate the Agreement in accordance with this
section.
e. Termination for Suit. Licensor may terminate this Agreement at any
time upon 30 days written notice if Licensor, or any Licensor Parties,
becomes the subject of third party civil or criminal litigation as a
result of Licensee's operations under this Agreement.
7. Remuneration.
a. One Time Fee. Licensee shall pay Licensor a one time, non-refundable
fee equal to the amount specified on Exhibit B hereto as the "Initial
Fee" in consideration of Licensor's consent to enter into this
Agreement.
b. Monthly Fee. Licensor shall retain a monthly fee based on a percentage
of Licensee's Net Monthly, Revenue, and paid in accordance with
Exhibit A of this Agreement, or $1,000 US,
Page 3 of 11
<PAGE> 5
whichever is greater. These monthly fees shall commence on the first
full day of Casino operation. Payments shall be deducted by Licensor
from any Net Monthly Revenue otherwise due to Licensee.
c. Payment Timing. All monthly payments shall be delivered to Licensor no
later than 5 days after their due date.
8. Confidentiality. Licensee shall not disclose the Confidential Information
of Licensor to any third party without the prior written consent of
Licensor, nor shall Licensee disclose the terms or contents of this
Agreement to any third party who is not bound to maintain the
confidentiality between the parties.
9. Obligations of Licensor.
a. Hardware. Licensor shall supply and maintain the Hardware for
operation of the Casino at Licensor's expense. Hardware shall not
become the property of Licensee.
b. Office Space. Licensor shall supply the office space required to house
the Hardware at Licensor's expense.
c. Internet Connection and Monthly Hosting Fee. Licensor shall supply an
appropriate connection to the Internet with sufficient bandwidth to
properly operate the Casino. Licensee shall pay for all bandwidth
associated with the operation of the website gateway and the Casino,
including the downloading of the Casino software via the Internet.
Bandwidth shall be charged to the Licensee at a monthly rate of $550
US for the first 15 gigabytes of data transfer and 10 cents US for
each megabyte thereafter. Hosting fees shall commence on the date in
which the first wager is accepted and shall be deducted from revenues
otherwise owed to Licensee.
d. No Redundancy. Licensor shall not be required to maintain a redundant
site.
e. Repairs. Licensor shall make all reasonable efforts to repair and
correct any problems arising under Licensor's areas of responsibility
that may arise from time to time which would cause Licensor to be
unable to perform its obligations under this Agreement.
f. Location of Hardware. Any Hardware processing or accepting wagers
shall be located only in places where Internet gaming may be operated
legally and which Licensor determines in its sole and absolute
discretion.
10. Operation of Software.
a. Access to Software. Licensor shall allow Licensee's customers to
download directly from the CPU the Downloadable Software necessary for
the Licensee's customers to play the games.
b. Master CD. Licensor shall supply Licensee with a Master CD containing
the Downloadable Software.
c. Additional Languages. As specified in Exhibit B, in addition to the
English language, Licensor may provide Licensee with up to seven
different language translations for the Casino web page. Licensor
shall be required to provide the software in the English language
only.
Page 4 of 11
<PAGE> 6
d. Graphics Changes. Notwithstanding anything to the contrary in this
section, any changes to the graphics of the routing gateway website
requested by the Licensee shall be made only in the absolute
discretion of Licensor and charged to Licensee at then prevailing
market rates.
e. URL's. Licensee may operate the gateway website only on a single URL
with the name specified as the "Licensee URL Name" in Exhibit B.
f. Warranty. Licensor warrants that the Pseudo-random numbers used by the
software for purposes of choosing game outcomes and shuffling cards
are generated in an unbiased manner.
g. Overall Graphics. Graphics for the main Casino shall be determined by
and implemented at the expense of Licensor. Initial graphics for
Licensee's gateway website shall be determined by the Licensee at the
expense of the Licensor.
11. Financial Transactions.
a. Transaction Processing System. Licensor shall provide a transaction
processing system that will allow Licensee's customers to deposit
funds for use of the Games. Licensee's customers will be able to
deposit funds via the Internet through the use of Visa, Mastercard,
and any other credit card accepted by Licensor. Other methods of
payment, such as wire transfers, money orders, and Western Union may
be made available from time to time at Licensor's discretion. Licensee
shall pay any transaction fees (merchant account fees, bank fees, wire
fees, Western Union fees, express mail, etc.) and credit card
chargebacks, which shall be deducted from monthly revenues otherwise
owed to Licensee. Licensee shall have no ownership rights to the
processing system.
b. Funds Control. Licensor shall receive deposits of funds to be used by
Licensee's customers, directly from Licensee's customers or through
Licensor's merchant accounts. Licensee's customers will deposit such
funds with Licensor in a bank account to be designated by Licensor.
Licensor shall make payments and debits from this account in
accordance with Licensee's customers' wins/losses and pay any
appropriate revenues to Licensee pursuant to Exhibit A. Payment shall
be made to Licensee on the 30th day of each month for any bank
deposits received from the Casino's previous month of operation.
12. Technical Support. Licensor shall supply technical support for Licensee's
customers. Technical support offered via the telephone shall be in the
English language only. Licensor shall determine the number of technical
support people and the number of incoming telephone lines for technical
support in Licensor's absolute discretion.
13. Accounting.
a. Records. Licensor shall maintain records of all transactions and
wagers placed in the Casino.
b. Information Requests. No fees are payable for regular accounting
information provided to Licensee for the purpose of calculating Net
Monthly Revenue.
c. Accounting Reports. Licensor shall provide daily accounting reports,
as defined by Licensor from time to time. The daily accounting reports
shall be delivered by World Wide Web, facsimile or e-mail.
Page 5 of 11
<PAGE> 7
d. Use of Accounting Information. Licensor and its agents shall have the
right to use the accounting information for statistical and reporting
purposes provided that specific information about the Licensee is not
disclosed.
e. Archive Period. Licensor shall archive and maintain the accounting
information for a period of 1 year, after which time accounting
information older than 1 year may be destroyed by Licensor without
liability to Licensee or Licensee's customers.
14. Customer Data.
a. Database. Licensor shall maintain a database containing the Customer
Information.
b. Use of Customer Information. Licensor and its agents shall have the
right to utilize the Customer Information for statistical purposes
only provided that it does not conflict with Licensee's Casino
marketing.
15. The Games. Licensor and its agents shall determine the odds and betting
limits for the Casino from time to time in their sole discretion. Further,
Licensor shall determine the games available in the Casino from time to
time.
16. Marketing. Licensee shall be responsible for all marketing of the services
offered through the Casino. Licensee shall spend on a monthly basis, a
minimum of 15% of the previous month's Net Monthly Revenue on marketing and
promoting the Licensee's gateway website. Licensee agrees not to market
with the use of any unsolicited email (spam). Except as specified herein,
Licensor is not responsible for tracking or maintaining any records or data
with respect to marketing.
17. Distribution of Software. Licensee shall be responsible for distribution of
CDs containing the Downloadable Software, and Licensee shall not alter the
software contained on the Master CD or copies thereof in any way. Licensee
shall ensure that the packaging for the software, as well as any logo
printed on the compact disc, shall display all proprietary rights symbols
such as copyright and trademarks, as supplied by Licensor in the
approximate size and font as supplied to Licensee by Licensor.
18. Regulatory Issues. Licensor shall be solely responsible for determining the
jurisdictions in which it chooses to accept and/or to receive wagers.
Licensee will not market the software to the citizens of St. Kitts or
Nevis, West Indies or any other jurisdiction specified by Licensor.
19. Web Site. Licensor shall construct and maintain the entire website where
the Downloadable Software is to be made available to Licensee's customers.
Licensor shall pay for the single Uniform Resource Locator ("URL") that is
required by Licensee to market the Casino.
20. Arbitration. Any controversy or claim arising out of or relating to this
agreement, or breach of this agreement, shall be settled by binding
arbitration, and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction. There shall be 1 arbitrator,
mutually agreeable to the parties, or if the parties cannot agree on an
arbitrator, then one shall be appointed by a court of competent
jurisdiction. The losing party shall pay all the expenses of the
arbitration.
21. No Employment Contract. Except as specifically provided herein, nothing
contained in the Agreement shall be construed to constitute either party as
a partner, employee, or agent of the other, nor shall either party have any
authority to bind the other in any respect, it being intended that each
shall remain an independent contractor responsible for its own actions.
Page 6 of 11
<PAGE> 8
22. Representation of Understanding. All parties and signatories to this
Agreement acknowledge and agree that the terms of this Agreement are
contractual and not mere recital, and all parties and signatories represent
and warrant that they have carefully read this Agreement, have fully
reviewed its provisions with their attorneys, know and understand its
contents and sign the same as their own free acts and deeds. It is
understood and agreed by all parties and signatories to this Agreement that
execution of this Agreement may affect rights and liabilities of
substantial extent and degree and with the full understanding of that fact,
they represent that the covenants provided for in this Agreement are in
their respective best interests.
23. Construction. This Agreement was drafted jointly by the parties and their
attorneys, and its provisions shall not be construed against either party.
24. Entire Agreement. This Agreement constitutes the entire agreement between
the parties and signatories and all prior and contemporaneous
conversations, negotiations, possible and alleged agreements, and
representations, covenants, and warranties, express or implied, oral or
written, with respect to the subject matter hereof, are waived, merged
herein and superseded hereby. There are no other agreements,
representations, covenants or warranties not set forth herein. The terms of
this Agreement may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend and agree that this
Agreement constitutes the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial or
arbitration proceeding, if any, involving this Agreement. No part of this
Agreement may be amended or modified in any way unless such amendment or
modification is expressed in a writing signed by all parties to this
Agreement.
25. Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original but all of which together shall
constitute one and the same instrument. When all of the parties and
signatories have executed any copy hereof, such execution shall constitute
the execution of this Agreement, whereupon it shall become effective.
26. Governing Law. The parties and signatories to this Agreement agree that all
questions respecting the execution, construction, interpretation or
enforcement of this Agreement, or the rights, obligations and liabilities
of the parties and signatories hereto, shall be determined in accordance
with the applicable provisions of the laws of the Country of St. Kitts,
West Indies.
27. Jurisdictional Consent. The parties hereto expressly and irrevocably
consent to the jurisdiction of the courts of the country of St. Kitts, West
Indies. Any action brought by or against either party in connection with
the performance, termination, or breach of this Agreement shall be brought
in courts of the country of St. Kitts, West Indies, and the parties hereby
agree that courts of the country of St. Kitts, West Indies shall be a
convenient and exclusive forum for the hearing of any such action.
28. Notices. All notices or other documents under this Agreement shall be in
writing and delivered personally or mailed by certified mail, postage
prepaid, addressed to the party being noticed at its last known address.
29. Non-waiver. The failure of any party to insist upon the prompt and punctual
performance of any term or condition in this Agreement, or the failure of
any party to exercise any right or remedy under the terms of this Agreement
on any one or more occasions shall not constitute a waiver of that or any
other term, condition, right, or remedy on that or any subsequent occasion,
unless otherwise expressly provided for herein.
30. Headings. Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
Page 7 of 11
<PAGE> 9
31. Binding Effect. The provisions of this Agreement shall be binding upon and
inure to the benefit of each of the parties and their respective successors
and assigns. Nothing expressed or implied in this Agreement is intended, or
shall be construed, to confer upon or give any person, partnership, or
corporation, other than the parties, their successors and assigns, any
benefits, or rights under or by reason of this Agreement, except to the
extent of any contrary provision herein contained.
32. Authority. The parties hereto represent and warrant that they possess the
full and complete authority to covenant and agree as provided in this
Agreement and, if applicable, to release other parties and signatories as
provided herein. If any party hereto is a corporation, the signatory for
any such corporation represents and warrants that they possess the
authority and have been authorized by the corporation to enter into this
Agreement.
33. Attorneys Fees. Should it be necessary to institute any action to enforce
the terms of this Agreement, the parties hereby agree that the prevailing
party in any such action shall be entitled to recover its reasonable
attorneys' fees, which shall include all costs of litigation, including,
but not limited to court costs, filing fees, and expert witness fees.
Further, the attorney fees and costs include the costs for such items for
any appeals. This paragraph shall remain separate from any judgment entered
to enforce its terms and shall entitle the prevailing party to attorneys
fees and costs incurred in connection with post judgment collection and
enforcement efforts.
34. Severability. If any provision of this Agreement is held by a court to be
unenforceable or invalid for any reason, the remaining provisions of this
Agreement shall be unaffected by such holding. If the invalidation of any
such provision materially alters the agreement of the parties, then the
parties shall immediately adopt new provisions to replace those which were
declared invalid.
35. Time of Essence. Time is of the essence under this Agreement.
36. Exhibits Incorporated by Reference. All exhibits referred to herein are
incorporated by reference and are so incorporated for all purposes.
37. Assignment of this Agreement. Either party's interest in this Agreement
shall not be sold, assigned, pledged, encumbered, or transferred by that
party without the written consent of the other party.
IN WITNESS WHEREOF, the parties and signatories execute this Agreement on the
dates indicated.
Page 8 of 11
<PAGE> 10
GLOBAL INTERACTIVE, LTD.:
Date: [ILLEGIBLE] BY: /s/ [ILLEGIBLE]
------------------- ----------------------------
LICENSEE:
Date: June 4, 1999 BY: /s/ [ILLEGIBLE]
------------------- ----------------------------
(President)
Page 9 of 11
<PAGE> 11
EXHIBIT A
Licensor shall pay to Licensee the following percentage of the Net Monthly
Revenue, minus all applicable fees, on or before the 30th of each month for
revenues generated during the previous calendar month. If Licensee decides to
enter into multiple agreements with Licensor, all individual Net Monthly
Revenues from each agreement shall reflect one accumulative total.
<TABLE>
<CAPTION>
NET MONTHLY REVENUE LICENSEE'S PERCENTAGE
- ------------------- ---------------------
<S> <C>
> $0.00 to $500,000.00 USD 65%
> $500,000.00 to $1,000,000.00 USD 70%
> $1,000,000.00 USD or more 75%
</TABLE>
Licensee Initials: /s/ BES
--------
Page 10 of 11
<PAGE> 12
EXHIBIT B
Initial Fee to be paid to Licensor by Licensee upon execution of this Agreement:
$ $50,000 US $50,000 upon signing of agreement
Casino web page to be translated into the following languages: Spanish, French,
Italian, German, Portuguese, Chinese, Japanese.
Licensee URL Name to be used as the URL for Licensee's gateway web page:
- -------------------------------------------------------------------------
Licensee Initials: /s/ BES
----------
Page 11 of 11
<PAGE> 1
EXHIBIT 6.4
PURCHASE AGREEMENT BETWEEN OMICRON TECHNOLOGIES INC.,
AND KALEIDOSCOPE INTERNATIONAL LTD.
<PAGE> 2
EXHIBIT 6.4
PURCHASE AGREEMENT
This agreement is made this 16th day of July 1999,
BETWEEN
OMICRON TECHNOLOGIES INC., (a Washington Corporation) having offices at
114 W. Magnolia Street, Suite 400-128, Bellingham WA 98225.
AND
KALEIDOSCOPE INTERNATIONAL LTD. (a Belize Corporation) having an
address of #1759, Belize City in the Country of Belize
WHEREAS, Kaleidoscope & Omicron desire to enter into a Purchase Agreement
whereby Omicron will acquire, for common shares, the assets of Kaleidoscope
listed in 1) which are primarily associated with Internet Bingo gaming.
1) The assets of Kaleidoscope are entirely free of any encumbrances and consist
of the following:
a) Three Universal Resource Locators with the names
i) maxumbingo.com
ii) maxument.com
iii) underheb.com
b) Sony Digital Camera and cabling.
c) Demonstration drivers for Java Camera.
d) MaXuM Bingo html development software and design.
e) A 300 megahertz Celeron computer with 96megabytes of RAM, 4.3 Gigabyte
Harddrive, 24speed CD ROM, 17 inch monitor and all the peripherals including
but not limited to all of the foregoing.
2) Omicron shall pay to Kaleidoscope 250,000 shares for the assets listed
above, subject only to the trading and other restrictions on such shares
normally required by the Securities and Exchange Commission of the United
States.
3) Omicron shall obtain right of possession for these assets immediately upon
signing of this agreement. If regulatory approval is not achieved within
three months of the signing date, then this agreement shall become null and
void
<PAGE> 3
and all of the aforementioned assets shall become the property of
Kaleidoscope.
4) Entire Agreement This Agreement reflects the final expression of the parties
agreement and contains a complete and exclusive statement of the terms of
that agreement, which such terms supercede all prior oral and written
agreements or statements by and among the parties. There are no other
agreements, representations, or warranties not set forth herein. No
representation, statement, condition or warranty not contained in this
Agreement not referred to herein or attached hereto will be binding on the
parties or have any force or effect whatsoever.
5) Notices Any notice or other document to be given or to be served upon any
party hereto in connection with this Agreement must be in writing (which may
include facsimile) and will be deemed to have been given and received when
delivered to the address given in this Agreement; or if none is specified,
to the last known address of the party to receive the notice. Any party may
at any time by giving five (5) days' prior written notice to the other party,
designate any other address in substitution of the foregoing address to which
such notice will be given.
6) Severability in any provision of this Agreement or the application of such
provision to any person or circumstance shall be held invalid for any reason,
the remainder of this Agreement or the application of such provision to
persons or circumstances other than those to which it is held invalid shall
be unaffected by such holding. If the invalidation of any provision
materially alters the Agreement of the parties, then the parties shall
immediately adopt new provisions to replace those that were declared invalid.
7) Non-Waiver The failure of any party to insist upon prompt and punctual
performance of any term or condition of this Agreement, or the failure of any
party to exercise any right or remedy under the terms of this Agreement on
any one or more occasions shall not constitute a waver of that or any other
term, condition, right, or remedy on that or any subsequent occasion, unless
otherwise expressly provided for herein.
8) Arbitration Except as otherwise provide for in this Agreement, any
controversy or claim arising out of this Agreement, the interpretation of any
of the provisions hereof, or the action, inaction or breach of any party
hereunder shall be settled by binding arbitration in Washington State, U.S.A.
Any award or decision obtained from any such arbitration shall be final and
binding upon the parties, and judgement upon any award thus obtained may be
entered in any court having jurisdiction thereof. There shall be one
arbitrator, mutually agreeable to the parties, or if the parties cannot agree
on an arbitrator, then an arbitrator shall be appointed by a court of
competent jurisdiction. The loosing party shall pay all of the expenses of
the arbitration. No action in law or in equity based upon any claim arising
out of or related to this Agreement shall be instituted in any court by any
party except (a) an action to compel
2
<PAGE> 4
arbitration pursuant to this Agreement or (b) an action to enforce an award
obtained in an arbitration proceeding in accordance with this Agreement.
9) Attorney's Fees In the event that any dispute between the parties should
result in litigation or arbitration, the prevailing party in such litigation
or arbitration shall be entitled to recover from the other party all
reasonable fees, costs and expenses of enforcing any right of the prevailing
party, including without limitation, reasonable attorney's fees, expert
witness fees and expenses. Attorney fees and costs include costs for such
items for any appeals. This paragraph shall remain independent from any
judgement entered to enforce its terms, shall not merge therewith, and shall
entitle the prevailing party to attorney's fees and costs incurred in
connection with post judgement collection and enforcement efforts.
10) Additional documents and Acts Each party agrees to execute, acknowledge and
deliver such additional documents and instruments and to perform such
additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions and conditions of this Agreement
and the transactions contemplated hereby, and each party agrees to act in
good faith and fair dealing in facilitating, maintaining and carrying out
the duties and obligations of this Agreement.
IN WITNESS WHEREOF, the parties hereby execute this Agreement effective on the
date first indicated above.
KALEIDOSCOPE OMICRON TECHNOLOGIES,
INTERNATIONAL LTD. INC.
By /s/ BRIAN SCHINDEL By /s/ BARRETT SLEEMAN
-------------------------- ---------------------------
Brian Schindel - Barrett Sleeman, President
Authorized Signatory
Witness to the signature of Witness to the signature of
Brian Schindel Barrett Sleeman
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
- ----------------------------- -----------------------------
3
<PAGE> 1
EXHIBIT 6.5
Agreement between Omicron Technologies Inc.
and Fairwind Technologies Ltd. for Software Development
<PAGE> 2
EXHIBIT 6.5
THIS AGREEMENT dated for reference the 17th day of September, 1999
BETWEEN:
OMICRON TECHNOLOGIES INC., a body corporate duly incorporated and
having an office at 2202 - 808 Nelson Street, Vancouver, British
Columbia, V6Z 2H2, Fax: (604) 681-9032
("OMICRON")
AND:
FAIRWIND TECHNOLOGIES LTD., a body corporate duly incorporated and
having an office at 109 - 4240 Manor Street, Burnaby, British Columbia,
VSG 1B2, Fax: (604) 436-2748
("FAIRWIND")
WHEREAS:
A. Omicron is a publicly traded company which provides state of the art
technology to the public.
B. Fairwind is a development oriented company which is able to provide
internet gaming software.
C. Omicron wishes to engage Fairwind to develop some gaming technology.
D. Fairwind has represented to Omicron that it has the ability to create
the Back-End Product as well as the Front-End Product.
E. The Parties have acknowledged the state of their negotiations in the
Letter of Intent but now wish to put into a legal agreement their understanding
with respect to Omicron acquiring from Fairwind certain exclusive distribution
rights for the Front-End Product and the Back-End Product.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the presents,
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
each of the Parties, the Parties hereto agree as follows:
1. INTERPRETATION
1.1 DEFINITIONS. In addition to the terms defined elsewhere in this
Agreement, the following terms shall have the meaning specified below:
"ACCEPTANCE OF THE PRODUCTS" means the date upon which Fairwind received notice
in writing from Omicron that the Products meet the Specifications.
-1-
<PAGE> 3
"AGREEMENT, HEREIN, HEREIN, HEREOF, HEREBY" and similar expressions mean or
refer to this document and the expressions ARTICLE, SECTION, SUBSECTION AND
PARAGRAPH followed by a number or letter mean or refer to that specified
article, section, subsection or paragraph of this Agreement.
"BACK-END PRODUCT" means computer software developed by Fairwind comprising the
accounting, communications and administration modules which inter-operate with
the Front-End Product.
"CLOSING DATE" means fourteen (14) days after the date of Acceptance of the
Products.
"COMPENSATION" means five hundred and forty-eight thousand ($548,000.00) dollars
Canadian payable pursuant to paragraphs 3 and 4 of this Agreement.
"COMPLETION SCHEDULE" means that schedule for completion of the development of
the Products as attached hereto as Schedule "A" and as amended from time to time
by the mutual agreement of the Parties.
"CONFIDENTIAL INFORMATION" includes all information, knowledge and expertise
relating to the Products and any Improvements and the business of either Party
now known, possessed by, or hereafter discovered and learned by a Party, and
disclosed to the other Party (herein the "RECIPIENT") except information that:
(a) is known to the Recipient before the date of receipt as
evidenced by written records of the Recipient;
(b) is lawfully disclosed to the Recipient by a third person who
is not under any obligation of secrecy to disclose a party; or
(c) is or becomes generally known to the public other than by a
breach by the Recipient of its contractual obligations.
"CONVERSION PRICE" means the weighted average of the closing trading price of
the shares of Omicron on the NASDAQ Over the Counter Market for the ten (10)
trading days immediately prior to the date of the Acceptance of the Products.
"FRONT-END PRODUCT" means computer software developed and owned by Fairwind
comprising the web pages and game client software which provides the playing of
games as follows:
(a) single player game with server: video poker, slot machine,
blackjack, roulette, craps;
(b) multi-user game with server: blackjack, roulette; and
(c) multi-player games: poker, roulette, baccarat and blackjack,
and more fully described in the Specifications.
-2-
<PAGE> 4
"GAMING INDUSTRY" means the industry comprised of businesses engaged in
operating, or providing services to, online casinos.
"IMPROVEMENTS" means any developments, updates, modifications, enhancements and
improvements to the Products including without limitation, developments of the
Products in languages other than English.
"LANGUAGES" means the English, French, Spanish and German.
"LICENSE" means the licenses described in sections 6.1 and 7.1 of this
Agreement.
"OMICRON SHARES" means the free trading shares of Omicron forming part of the
Compensation, the number of which will be calculated pursuant to section 5 of
this Agreement.
"PARTIES" means Omicron and Fairwind and Party means either of them.
"PRODUCTS" means the Back-End Product and the Front-End Product.
"SPECIFICATIONS" means the specifications of the Products as attached hereto as
Schedule "B" and as amended from time to time by the mutual agreement of the
Parties.
1.2 This Agreement shall in all respects be governed by and be construed in
accordance with the laws of the Province of British Columbia and the laws of
Canada applicable therein.
1.3 If any one or more of the provisions contained in this Agreement should
be invalid, illegal or unenforceable in any respect in any jurisdiction the
validity, legality and enforceability of such provision or provisions shall not
in any way be affected or impaired thereby in any other jurisdiction and the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
1.4 Wherever the singular or the masculine is used herein the same shall be
deemed to include the plural or the feminine or the body politic or corporate
where the context or the Parties so require.
1.5 The headings to the clauses of this Agreement are inserted for
convenience only and shall not affect the interpretation hereof.
1.6 Unless otherwise stated a reference herein to a numbered or lettered
section or subsection refers to the section or subsection bearing the number or
letter in this Agreement.
1.7 All accounting terms not defined in this Agreement shall have those
meanings generally ascribed to them in accordance with generally accepted
accounting principles, applied consistently.
-3-
<PAGE> 5
1.8 The following schedules form part of this Agreement with respect to the
interpretation thereof:
"A" Completion Schedule
"B" Specifications
2. DEVELOPMENT OF THE PRODUCTS
2.1 Fairwind shall develop the English language version of the Products and
deliver such Products to Omicron in accordance with the Completion Schedule.
2.2 Fairwind warrants that at the date of the Acceptance of the Products by
Omicron the Products will substantially conform to the Specifications. Promptly
after delivery of the Products by Fairwind to Omicron, Omicron will, acting
reasonably, test the Products to determine whether they substantially conform to
the Specifications. If the Products substantially conform to the Specifications,
Omicron will promptly notify Fairwind in writing of its Acceptance of the
Products.
2.3 If the Products fail to substantially conform to the Specifications,
Fairwind will use commercially reasonable efforts to correct any defects or
failures in the Products. Omicron acknowledges and agrees that the foregoing
shall be Fairwind's entire obligation and liability in respect of the breach of
the warranty in section 2.2.
2.4 Except as expressly warranted above, all implied and statutory
warranties and conditions of any kind, including but not limited to, implied
warranties and conditions of merchantability, fitness for a particular purpose
and non-infringement are hereby excluded. Nothing stated in this Agreement will
imply that the operation of the Products will be uninterrupted or error free.
2.5 In no event shall Fairwind or its directors, officers, employees,
agents, suppliers, distributors or licensors (collectively "ITS
REPRESENTATIVES") be liable to Omicron or any third party for any indirect,
incidental, special or consequential damages whatsoever, including but not
limited to lost revenue, lost or damaged data or other commercial or economic
loss, however caused, whether based in contract, tort (including negligence) or
any other theory of liability. The foregoing limitation shall apply even if
Fairwind or Its Representatives know or have been advised of the possibility of
such damage and notwithstanding any failure of essential purpose or any limited
remedy provided for herein. In no event will the aggregate liability of Fairwind
and Its Representatives for any damages or claims arising out of or relating to
this Agreement, whether in contract, tort (including negligence) or otherwise,
exceed the total compensation paid to Fairwind by Omicron under this Agreement.
3. COMPENSATION
3.1 Omicron shall pay to Fairwind the Compensation as follows:
(a) $411,000 Canadian by way of monies; and
(b) $137,000 Canadian by issuance of the Omicron Shares.
-4-
<PAGE> 6
4. PAYMENT OF COMPENSATION
4.1 Omicron shall pay the Compensation to Fairwind as follows:
(a) One hundred and twenty-three thousand three hundred ($123,300) dollars
Canadian representing thirty (30%) percent of the Compensation by way
of cheque within three (3) days of execution of this Agreement by the
Parties and within 30 days after the execution of this Agreement, a
share certificate for 12,050 free trading shares of Omicron together
with an option to acquire 6,025 shares of Omicron at the option price
of US$2.31 per share; and
(b) the balance of the Compensation by a combination of a cheque in the
amount of two hundred and eighty-seven thousand seven hundred $287,700
dollars Canadian together with the certificates representing the free
trading Omicron Shares, on the Closing Date.
If Omicron is unable to deliver free-trading shares of Omicron pursuant to this
Agreement as a result of regulatory hurdles that cannot be overcome by Omicron
through commercially reasonable efforts, Omicron may deliver shares that are
subject to a hold period not greater than one year provided however that Omicron
issues to Fairwind the number of such shares subject to a one year hold period
that would be equal to 120% of the number of free-trading Omicron Shares that
Omicron would have been obligated to issue.
5. DETERMINATION OF NUMBER OF OMICRON SHARES
5.1 The number of Omicron Shares to be issued to Fairwind pursuant to
section 4.1(b) of this Agreement shall be calculated by dividing ninety-five
thousand and nine hundred ($95,900) dollars Canadian by the Conversion Price.
6. FRONT END PRODUCT
6.1 Omicron hereby acquires from Fairwind, and Fairwind hereby grants to
Omicron, the exclusive world-wide rights to use, commercialize and exploit the
Front-End Product, in the Languages, within the Gaming Industry, in object code
format only subject to section 6.2.
6.2 Omicron hereby acquires from Fairwind, and Fairwind hereby grants to
Omicron, and the non-exclusive world-wide rights to use the source code for the
Front-End Product for the purpose of the developing French, Spanish and German
versions of the Front-End Product and supporting and monitoring the Front-End
Product in the Languages. Omicron will at all times treat the source code for
the Front-End Product as Confidential Information pursuant to section 11 of this
Agreement.
6.3 Fairwind reserves all rights not granted herein, including without
limitation, the right to use, commercialize and exploit the Front-End Product in
languages other than the Languages in the Gaming Industry, and in any language
outside of the Gaming Industry, and the right to use, develop, upgrade, enhance,
improve and otherwise modify the Front-End Product in all languages.
-5-
<PAGE> 7
7. BACK-END PRODUCT
7.1 Omicron hereby acquires from Fairwind, and Fairwind hereby grants to
Omicron, the exclusive world-wide rights to use, commercialize and exploit the
Back-End Product, in the Languages, within the Gaming Industry, in object code
format only.
7.2 Fairwind reserves all rights not granted herein, including without
limitation, the right to use, commercialize and exploit the Back-End Product in
languages other than the Languages in the Gaming Industry, and in any language
outside of the Gaming Industry, and the right to use, develop, upgrade, enhance,
improve and otherwise modify the Back-End Product in all languages.
7.3 Omicron acknowledges and agrees that the license of the Back-End
Product does not include a right to receive, have access to, or use of, the
source code for the Back-End Product.
8. SUBLICENSING
8.1 The licenses granted to Omicron under sections 6.1 and 7.1 of this
Agreement shall include the right to grant to third parties sublicenses in
respect of the Products (in object code format only), provided however that
Fairwind shall have first approved the sublicensee and the sublicense agreement,
such approvals not to be unreasonably withheld or delayed. If Fairwind has
failed to respond to a written request for approval of a sublicensee, five
business days after it has been submitted by Omicron to Fairwind, then Fairwind
shall be deemed to have approved such sublicensee.
8.2 Omicron will maintain full, accurate and complete records and books of
account relating to all sublicensing of the Products. Fairwind may on five days'
written notice and during normal business hours inspect such records and books
of account of Omicron and may by itself or through an agent conduct an audit of
such records and books of account.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF FAIRWIND WITH RESPECT TO
THE PRODUCTS
9.1 Fairwind represents and warrants to, and covenants with, Omicron that
with respect to the Products:
(a) that as of the Closing Date Fairwind will solely own the rights to the
intellectual property with respect to the Products free and clear of
all liens, charges and encumbrances whatsoever and that Fairwind will
not have sold, transferred, licensed or assigned any of its rights
including it's intellectual property rights in the Products to any
other person other than pursuant to this Agreement;
(b) that as of the Closing Date to the best of Fairwind's knowledge, the
intellectual property rights of Fairwind with respect to the Products
will not infringe upon any intellectual property rights of any other
Party.
- 6 -
<PAGE> 8
(c) that Fairwind will not sell, transfer or assign the intellectual
property rights in the Front-End Product nor subject such rights to
any lien, charge or encumbrance in favour of any other person during
the term of this Agreement.
(d) that Fairwind has due and sufficient right and authority to enter into
this Agreement on the terms and conditions herein set forth;
(e) that to Fairwind's knowledge, there is no basis for and there are no
actions, suits, judgments or investigation or proceedings outstanding
or pending threatened against or affecting the Products including the
intellectual property rights with respect to the Products at law or in
equity or before any person including without limiting the generality
of the foregoing, any federal, state, provincial, municipal or other
governmental department, commission, board, bureau or agency;
(f) that to Fairwind's knowledge, the source code and technical
development details with respect to the Products has been kept
confidential and with the exception of the information provided to
Omicron, Fairwind has not revealed to anyone any such confidential
information with respect to Products and Fairwind.
10. INTELLECTUAL PROPERTY PROTECTION
10.1 Fairwind may seek patent protection in respect of any of the Products
and any Improvements as it may consider appropriate. Fairwind will use
commercially reasonable efforts to obtain copyright registrations in respect of
the Products and any Improvements in Canada and the United States provided that
such procedures are not likely to result in a disclosure of Fairwind's
Confidential Information.
10.2 Fairwind will provide to Omicron copies of all relevant correspondence
with patent agents in respect of any patent applications that may be filed in
respect of any of the Products or any Improvements. Fairwind will provide to
Omicron copies of all correspondence relating to copyright registrations for the
Products and any Improvements in Canada and the United States.
10.3 If Fairwind has decided that it will not seek patent protection in
respect of any of the Products or any improvement in any particular
jurisdiction, at Omicron's request, Fairwind will pursue patent protection in
jurisdictions specified by Omicron provided however that Omicron shall be
responsible for all costs and expenses, including all legal and patent agents'
fees, out-of-pocket expenses and governmental filing, maintenance and other
official fees in respect of the requested filings.
11. PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION
11.1 Omicron acknowledges and agrees that all right, title and interest,
including copyright, patent rights and other intellectual property rights, in
and to the Front-End Product, Back-End Product and all Improvements thereto
shall be the exclusive property of Fairwind in which Omicron acquires no
proprietary right other than the rights granted under this Agreement.
- 7 -
<PAGE> 9
11.2 A Recipient shall maintain Confidential Information confidential and
shall not disclose Confidential Information or authorize its disclosure to any
third person, except as permitted by this Agreement, or with the prior written
consent of the Party from whom the Confidential Information was received.
11.3 The obligations of confidentiality imposed by section 11.2 on a
Recipient in respect of Confidential Information do not apply to disclosures to
securities or gaming regulators, or as required by law, provided that the
disclosure is kept to the minimum extent necessary, the disclosure is made only
under obligations of confidentiality imposed on the recipient and Fairwind is
notified before such disclosure is made.
12. TERM AND TERMINATION
12.1 Unless otherwise terminated in accordance with this section, this
Agreement and the License hereunder will continue in force for an initial term
of three (3) years from the date first above written.
12.2 If at the end of the initial term (or any renewal term as the case may
be) Omicron has during the immediately preceding year has generated for Fairwind
new sublicense fees and/or royalties in the aggregate amount not less than
$100,000, and is not then in default of any material term under this Agreement,
then this Agreement will be automatically renewed for an indefinite number of
additional one year terms.
12.3 In the event that either party hereto:
(a) continues in material default in the performance or observance of any
its obligations under this Agreement for a period of more than thirty
(30) days after written notice has been given specifying the default;
or
(b) becomes insolvent, files or has filed against it an application for
bankruptcy, liquidation or winding up or effects a compromise with its
creditors in general or has a receiver, or a trustee appointed for its
business or property, or seeks to avail itself of the benefit of any
law for the relief of debtors,
then the other party may terminate this Agreement by giving written notice to
the defaulting party, which termination will take effect on the date the notice
of termination is given.
12.4 Upon any termination of this Agreement, Omicron will immediately cease
all use of the Products and any Improvements and Omicron shall promptly return
to Fairwind all copies of the Products within its possession or control, and
where return of such copies are impractical then permanently destroy or delete
such copies.
12.5 On termination of this Agreement, no party has any further obligations
or rights under this Agreement except as they may have accrued as of the date of
termination and except pursuant to sections 11 and 12, together with the
provisions relevant to the interpretation and enforcement of those sections,
which shall survive termination. The termination of this Agreement does not
effect the obligation on any party to pay monies due and owing to the other
party,
- 8 -
<PAGE> 10
including without limitation, royalties from sublicensees, which obligations
shall continue notwithstanding termination.
13. INFRINGEMENT
13.1 Fairwind shall defend at its own expense all infringement suits that
may be brought against Fairwind on account of the Products and when information
is brought to Fairwind's attention, indicating that others without license are
unlawfully infringing on the rights granted by this Agreement, Fairwind will
have the first right to prosecute diligently any infringer at its own expense,
failing which Omicron may pursue such infringer at its own expense.
13.2 If Fairwind finds it desirable in any suit which Fairwind may
institute, Fairwind may join Omicron as plaintiff. In such event Omicron shall
not be chargeable for any costs or expenses. In connection with lawsuits
commenced by Fairwind, Omicron shall execute all papers necessary or desirable
and Omicron shall testify in any suit whenever requested to do so by Fairwind,
all however, at the sole expense of Fairwind.
14. MAINTENANCE AND IMPROVEMENTS OF PRODUCTS
14.1 Fairwind shall at its own cost and expense provide the necessary
technical assistance and support during the term of this Agreement to:
(a) train two (2) employees of Omicron with respect to the use and
operation of the Products; and
(b) repair promptly any defects in the Products in a timely manner.
14.2 Fairwind will develop Improvements as requested by Omicron and accepted
by Fairwind provided that Omicron shall be responsible to pay for all such
development and modification services at Fairwind's time and materials rates
then in effect and to reimburse Fairwind's reasonable out-of-pocket expenses
incurred in performing such development and modification services. All right,
title and interest, including copyright and other intellectual property rights,
in any such Improvements shall be the exclusive property of Fairwind in which
Omicron will acquire no rights except the rights to use pursuant to sections 6.1
and 6.2 in the case of developments and modifications to the Front-End Product
and Section 7.1 in the case of developments and modifications to the Back-End
Product.
15. DOCUMENTS TO BE DELIVERED BY FAIRWIND TO OMICRON ON
THE CLOSING DATE
15.1 On the Closing Date, Fairwind shall deliver to Omicron the following:
(a) Certificate of an Officer of Fairwind indicating that the
representations and warranties as set forth in this Agreement with
respect to the Products are true and correct as at the Closing Date;
-9-
<PAGE> 11
(b) the source code with respect to the Front-End Product for the use by
Omicron subject to the terms of this Agreement;
(c) copies of relevant correspondence with respect to patent protection
for the Products and copies of any copyright registrations.
16. DOCUMENTS TO BE DELIVERED BY OMICRON ON THE CLOSING
DATE
16.1 On the Closing Date, Omicron shall deliver to Fairwind the following:
(a) the cheque for $287,700 Canadian as specified in section 4.1 of this
Agreement and, within 30 days of the Closing Date, the share
certificate for the Omicron Shares as provided in section 4.1(b) of
this Agreement.
17. CLOSING
17.1 The Closing shall occur at the office of Omicron or its solicitor on
the Closing Date or at times and places as agreed upon mutually by the Parties.
18. GENERAL PROVISIONS
18.1 TIME. Time shall be of the essence of this Agreement.
18.2 NOTICES. All notices must be in writing and be delivered by hand or by
courier or by fax transmission to the addresses and fax numbers on the first
page of this Agreement. Addresses and fax number for notices may be changed by
subsequent notice. Notices delivered by hand or by courier are given when
received. Notices delivered by fax transmission are given on the business day
immediately following the date of transmission.
18.3 ENTIRE AGREEMENT. This Agreement supersedes and replaces any and all
previous agreements between the Parties with respect to the Products.
18.4 PARTIES IN INTEREST. This Agreement and all grants, covenants,
agreements, provisos, rights, benefits, remedies and liabilities herein
contained shall be read and held as made by and with and granted to and imposed
upon the respective Parties hereto, and their respective, successors and
assigns, as if the words "successors and assigns" had been inscribed in all
necessary places.
18.5 FURTHER ASSURANCES. The Parties hereto shall with reasonable diligence
do all such things and provide all such reasonable assurances as may be required
to consummate the transactions contemplated hereby, and each Party hereto shall
provide such further documents or instruments required by the other Party as may
be reasonable necessary or desirable to effect the purpose of this Agreement and
carry out its provisions whether before or after the Closing Date.
18.6 ASSIGNABILITY. This Agreement may only be assigned by the Party with
the consent of the other Party in writing. For a period three years immediately
following the reference date of
-10-
<PAGE> 12
this Agreement as set forth on page one, a change in the controlling ownership
of Fairwind shall require the consent of Omicron, such consent not to be
unreasonably withheld or delayed.
18.7 RELATIONSHIP OF THE PARTIES. The parties hereto are independent
contractors. Neither party has any express or implied right or authority to
assume or create any obligations on behalf of the other or to bind the other to
any contract, agreement or undertaking with any third pay.
18.8 ARBITRATION. In the event that the Parties are in dispute regarding any
matter pursuant to this Agreement, then, failing agreement between the Parties,
the disputed matter other than disputes affecting the intellectual property
rights of either Party, shall be decided by a single arbitrator, appointed
pursuant to the provisions of the Commercial Arbitration Act, (British Columbia)
whose decision shall be final and whose expense shall be borne equally by the
Parties.
IN WITNESS WHEREOF the Parties hereto have hereunto affixed their hands and
seals on the day and year first above written
OMICRON TECHNOLOGIES INC.
by its authorized signatory(ies)
/s/ SAK NARWAL 17 SEPT 1999
- ------------------------------------------
Name: Sak Narwal, CFO.
- ------------------------------------------
Name:
FAIRWIND TECHNOLOGIES INC.
by its authorized signatory(ies)
/s/ DU WEON KYE 17 SEP 1999
- ------------------------------------------
Name: Du Weon Kye (Thomas Kei), C.E.O
/s/ YANG HWUI LEE 12 SEP 1999
- ------------------------------------------
Name: Yang Hwui Lee (Peter), Director
-11-
<PAGE> 13
SCHEDULE "A"
COMPLETION SCHEDULE
See Section 7 - "Time & Delivery Requirements" in the Software Requirement
Specification attached as Schedule "B".
A-1
<PAGE> 14
SCHEDULE "B"
SPECIFICATIONS
Please see attached Software Requirement Specification.
B-1
<PAGE> 15
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
- --------------------------------------------------------------------------------
SOFTWARE REQUIREMENT SPECIFICATION
- VER.1.0 -
OMICRON TECHNOLOGIES INC. &
FAIRWIND TECHNOLOGIES LTD.
<PAGE> 16
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
- --------------------------------------------------------------------------------
Project Name Lucky Town
------------ --------------------------------------------
AUTHORS Omicron: Brian Schindel Fairwind: Thomas Kei
ASSIGNED TO Omicron: Ranjit Bal Fairwind: Peter Lee
DATE 16/09/99
VERSION 1.0
VERSION CONTROL Brian Schindel
SUBMITTED TO Fairwind Technologies Ltd.
<PAGE> 17
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
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1. INTRODUCTION
1-1 PURPOSE OF SRS
This document was made to achieve the purposes of:
1-1-1 Providing the blue print of service and software
1-1-2 Providing the requirements guide line to test the product and
service which are delivered by Fairwind Technologies Ltd.
1-1-3 To achieve the time goal, providing the development directions
1-2 SCOPE OF SRS
This SRS has a role to initiate the development of target service
and products which are described in this document and to provide
acceptance level when the products are delivered and tested by
Omicron.
So, This SRS has a role to provide:
1-2-1 The development directions which are defined by the result of
discussion made between Omicron and Fairwind Technologies Ltd.
1-2-2 The architecture and requirements which is decided by the
result of discussion of both parties
<PAGE> 18
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
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1-3 Business Context
[FLOW CHART]
<PAGE> 19
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
- --------------------------------------------------------------------------------
2. General Description
2-1 Service & Company Mission
The mission is to become the leader in the delivery of high quality
graphics casino gaming on the Internet. We will achieve this by;
- the use of leading edge technology
- close understanding market trends
- innovative graphics and design
- a good understanding of the Internet Industry.
We will lead the way in offering a real-time and interactive gaming
experience on the Internet.
- The interactivity that we deliver will ultimately provide a new
level of customer satisfaction and competitive edges.
2-2 User analysis
2-2-1 Target User
-Affluent Internet users, predominantly male, middle class with
disposable incomes for entertainment. We will develop each
casinos based on specific language, ethnic and cultural
preferences.
2-2-2 User's Objective
-We will differentiate ourselves from the competition by providing
greater entertainment value and interactivity along with improved
trust and security.
-We ill position ourselves to take advantage of the opportunities
that E-Commerce, the growth of the Internet and Internet Gaming
is providing.
-Ultimately, we aim to strategically position ourselves to become
the premier supplier of gaming software and portal service with
Fairwind Technologies in the world
<PAGE> 20
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
- --------------------------------------------------------------------------------
3. Service Description
3-1 Service Name & Domain
-Provisionally this software and service is called "Lucky Town"
-Service Name and trade marks for Software packages will be defined
by Fairwind Technologies in near future.
-Domain Name and addresses will be defined and prepared by Omicron by
the time the system will be set up to test.
-Service Language will be provided in English
3-2 Service Concept
LUCKY TOWN IS THE PREMIER, RELIABLE INTERNET GAMING COMMUNITY
3-3 Products Descriptions
3-3-1 Lucky Town Full Version
A. System Architecture
User Front End Back End
Win 95,98 Web Pages Account Module
on IE 4.0
Game Server Corn Infra Module
Sun Solaris Admin Module
Windows NT
<PAGE> 21
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
- --------------------------------------------------------------------------------
B. WEB PAGE ARCHITECTURE
[FLOW CHART]
C. FULL VERSION ARCHITECTURE
[FLOW CHART]
<PAGE> 22
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
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C. Game software Descriptions
C-1 Single Player Game with Server
Single play game can be downloaded each by each in website and play
with server without Client software.
-Video Poker: (5 Kinds of Graphical Interface)
-Slot Machine: (10 Kinds of Graphical Interface)
-Black Jack: (1 Graphical Interface)
-Roulette: (1 Graphical Interface)
-Craps
-Video Poker (1 Graphical Interface with Shockwave)
-Slot Machine (1 Graphical Interface with Shockwave)
C-2 Multi User Game with Server
-Visual chatting with another users
-Server act as dealer.
-Black Jack (the same graphical interface with single player game)
-Roulette (the same graphical interface with Single player game)
C-3 Multi Player Games
-Visual chatting with each other
-One of the players participating in a game act as dealer.
-Poker (Seven Card)
-Roulette (The same graphical Interface with multi user)
-Baccarat
-Black Jack (The same graphical Interface with multi user)
<PAGE> 23
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
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3-3-2 Lucky Town Light Version
-This is just for sub licensing usage.
-No Avatar with visual chatting
-No Communication Infra system (Visual Chatting, messenger etc)
-No web pages
-The requirements for server to play in single mode are the same with
service version
[FLOW CHART]
-Each web pages will be built by each sub licensee
3-4 Function Requirements
3-4-1 Client and Game Software Distribution
A. Downloading Game software
-Full Version
-Light Version (Client only)
-Each game can be added separately
B. CD-ROM Distribution
-One-click setup and connection support
-Package Design is made by Omicron
<PAGE> 24
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
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o Postal Code/Zip code
o State/Provice
o Country (Pull down list of country)
o If your country is not listed, enter it here
o Preferred Language (Pull down List)
o If your preferred Language is not listed, enter it here
o E-mail address (required)
o Your Date of Birth (dd/mm/yy)
o Area code and Home phone Number
o Area code and Work phone Number
o Are you of legal Age of Majority? (yes or no)
o Please specify how you found us? (For example if it was a search
website, such as Yahoo, then type in its name. If it was an
advertisement, then where you saw the ad)
o How many virtual casinos have you visited, downloaded and played for
fun in? (Pull down options None,1,2,3,4,5,6,7,8,9,10.10+)
o How many virtual casinos have you visited, downloaded and played for
real in? (Pull down options None,1,2,3,4,5,6,7,8,9,10.10+)
o Any special requests, comments or questions you may have can be
entered here!
o Please contact me with information on licensing LuckyTown software
(Check box)
o If you chose to Play for real, the gaming adventure is even better -
the winnings you accumulate are yours to keep!
Would you like to:
o PLAY FOR REAL
o Play for Fun
<PAGE> 25
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
- --------------------------------------------------------------------------------
Submit and Start playing(button) & Clear(button) at the bottom of page
Disclaimer: LuckyTown Online Casino reserves the right to close accounts
at any time including when registration information is discovered to be
incorrect or misleading. Lucky town Casino is restricted to individuals of legal
age only. Minors cannot play. CLICK HERE TO VIEW OUR TERMS AND CONDITIONS.
3-4-3 Service Operations
A. Fee Structure
-Membership Fee: one time fee and give member default chips
-Buying chip fee: When the member buying chip, server collects a
certain amount of chips from total buying chips
-Drawback fee: When the member drawback cash from service, server
collects a certain amount of chips remained the minimum chips for
gaming , which is disclaimed.
-Gaming Fee: For multi-player games, when each game is over, winner
pay the game fee. And Game fee is variable depending on the times
of bet and amount of bet on each game. This is supported by options
for player and dealer decides the options.
B. Server Operation
-Service is opened on a certain time and closed on a certain time
(recession time is 10-30 minutes)
-This does not means of Power off of server.
-This rule is give much merits for server maintenance and service
operations
<PAGE> 26
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
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C. Buying Chip Process
-Buying Chip service is located on the web page (not Client
software)
[FLOW CHART]
-Drawback service is located on webpages
-When User request drawback, this is sent to the operator
-The CHIP AMOUNT OF USERS ARE REDUCED WHEN THE SERVICE IS CLOSED.
-On GAMING, User CANNOT REQUEST DRAWBACK.
[FLOW CHART]
<PAGE> 27
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
- --------------------------------------------------------------------------------
- Chip Configurations
To response to the market easily, we need to set the range of fees,
so company can modify the fee structure as it wishes at any time.
o Buying chip fee
o Drawback fee
o gaming fee
5.Graphical Requirements
5-1 Design Concept
-Representing American taste
-Bright, Clean and modern style
-Adult oriented characters and expressions
-Benchmarking other casinos in design features
5-2 Client Software Design Requirements
5-2-1 Avatar
-Avatars are 10 Kinds of Characters
-Each Characters express their emotion on 6 ways (Normal, Angry,
happy, unhappy, absurd, stunned)
-Size: 96*25
-Color: (-RGB Color, -16M Color, -8Bits/ Channel)
-File size: 36 Kbyte/avatar
-Background of Avatar is treated transparently with RGB
(255,255,255)
5-2-2 Chatting Room
-Chatting Room Background: 1 kind
<PAGE> 28
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
- --------------------------------------------------------------------------------
- Size: 590*287 (bottom 17 is used for Id Bar)
- Color: 16M Color
5-2-3 Waiting Room
- Waiting Room Background: 1 Kind
- Size: 590*469
- Color: 256 Color
5-2-4 Metaphor for Chatting Room
- Each waiting room has 20 Chatting room's metaphor
- Size and color is variable
5-2-5 Icons within Chatting room
- Game Icons
- Size 32*32
- Color: 256 Color
5-2-6 Icons for Emotional expression
- 6 Kinds
- Size: 32*32
- Color: 16 Color
5-2-7 Etc
- Pager Icons
- Chat bubbles
<PAGE> 29
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
- --------------------------------------------------------------------------------
5-2-8 Layout of Client window
[LAYOUT OF CLIENT WINDOW]
5-3 Game Software
Game graphics are benchmarked other casino software but the main factors which
should be focused are below;
-Game table color
-Card patterns
-Slot machine exterior graphics
-Pattern and color of the background
<PAGE> 30
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
- --------------------------------------------------------------------------------
5-4 Review Process of Design
-We will hold review process 3 times before finalizing the
development process
6. Administration Requirements
6-1 Operation and Management Tools
-Remote Server Management Tools
-Auto server recovery (Hardware supporting)
-Password Management Tools
-DBMS will be provide by Omicron (MS-SQL is recommended)
6-2 Report Generator
6-2 Monitoring tools for Sub Licensee
-We have to check the status of Sub Licensee's Revenue in remote
daily or monthly basis, so for Light Version's server requires the
functions to check the sales volume of Sub-licensee's.
-Remote reporting tools for the checks of sales volume of Sub-
licensee
7. Time & Delivery Requirements
7-1 Progress Reporting
<PAGE> 31
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
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3-4-2 Subscription & User information
-Disclaimer is attached by Omicron
3-4-2-1 Open account
1 step : Filling the application form : user defines his own user
id, and password will then be issued and sent to his E-mail box
2 step : Download and install the software on user's computer
3 step : Make a payment to your account.
3-4-2-2 : Free User & Real User
-User have an option to subscribe as free or real
-Free or real has their own account, but free user does not
subscribe as a real user after 15 days, free user's account is
automatically deleted.
3-4-2-3 : Account Application Form
Please fill in all the fields below and then press the submit button
You will then receive Your unique password via E-mail ! All fields
below must be filled in correctly to register successfully
Note: If you already have a username and password and need to
download the software again click here.
o First Name
o Last Name
o Mailing Address
o City
<PAGE> 32
OMICRON TECHNOLOGIES INC. & FAIRWIND TECHNOLOGIES LTD.
- --------------------------------------------------------------------------------
-BIWEEKLY VIA E-MAIL
7-2 GRAPHIC REVIEW SESSION
-1st : AROUND 20TH OF SEPTEMBER (SAMPLE FEATURES TO DECIDE THE
DIRECTIONS OF GRAPHICS)
-2nd : AROUND 15TH OF OCTOBER (TO DECIDE THE SPECIFIC DESIGN
FEATURES TO BE CORRECTED)
-3rd : AROUND 25TH OF OCTOBER (TO FINALIZE THE DESIGN FEATURES)
7-4 TIME LINE
-LUCKY TOWN full VERSION OPEN (BETA) : 1 ST NOVEMBER 1999
* DUE TO THE DELAY of CONTRACT AND REQUIREMENT SPECIFICATIONS,
* WE WILL OPEN WEB PAGES ON 1ST of NOVEMBER AND GAME BETA MAY BE
DELAYED 1 OR 2 WEEKS.
-TEST AND APPROVAL PERIOD: FROM 1ST NOVEMBER 1999 TO 15TH
NOVEMBER
-SINGLE GAME ENGINE UPGRADE: 15TH DECEMBER 1999
<PAGE> 1
EXHIBIT 6.6
OPTION ACQUISITION AGREEMENT BETWEEN OMICRON TECHNOLOGIES INC.
AND VIASPACE TECHNOLOGIES, LLC
<PAGE> 2
Exhibit 6.6
OPTION ACQUISITION AGREEMENT
Dated this 12th day of October, 1999
BETWEEN:
OMICRON TECHNOLOGIES, INC., a corporation incorporated under the laws
of the State of Florida, whose head office is located at Suite 2202 -
808 Nelson St., Vancouver, B.C. Canada V6Z 2H2
(Hereinafter referred to as "Omicron")
OF THE FIRST PART
- -AND-
VIASPACE TECHNOLOGIES, LLC., a corporation incorporated under the laws
of the State of Delaware whose head office is located at 2400 Lincoln
Ave. Altadena, CA.
(Hereinafter referred to as "ViaSpace")
OF THE SECOND PART
SUBJECT MATTER
WHEREAS, ViaSpace has secured from Caltech an option to acquire the
APS and APS Wireless Technology("the Technology");
WHEREAS, ViaSpace has the right to sell and/or assign such option to
the Technology;
AND WHEREAS, Omicron is desirous of purchasing the option for such
Technology;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT, in consideration of the
foregoing premises, the mutual covenants, agreements, representations,
warranties and indemnities of the parties herein set forth, and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each party), the parties hereto agree as follows:
<PAGE> 3
ARTICLE ONE-PURCHASE PRICE
1.01 Omicron agrees to pay $3,000,000 for the Technology more particularly
described in Schedule "A" attached hereto and forming a part of this
Agreement;
ARTICLE TWO - TERMS OF PAYMENT
2.01 Omicron will pay in cash a total of $750,000 which ViaSpace hereby
acknowledges having received previously.
2.02 Further, Omicron agrees to transfer at closing 1,500,000 shares of
restricted common shares at a price of $2.25 per share to ViaSpace in
order to fulfill its obligations under this Agreement for the balance of
the Purchase Price;
2.03 Within five(5) days of the signing and execution of this Agreement,
ViaSpace will deliver to Omicron a properly endorsed and acknowledged
assignment of its option for the Technology from Caltech properly endorsed
and executed into the name of ViaSpace.
2.04 Simultaneously with (or not later that 5 working days) the signing and
execution of this Agreement, Omicron will deliver to ViaSpace, a duly
executed authorization addressed to the Fidelity Stock Transfer Company,
Salt Lake, Utah such form as set out in Exhibit "A" to this Agreement.
Fidelity Stock Transfer Company will be further advised that the shares of
stock will be delivered to ViaSpace pursuant to the terms of this
Agreement.
2.05 Both ViaSpace and Omicron will deliver to a mutually agreeable escrow
agent duly authorized and executed stock powers with signature guaranteed
by a local bank which the escrow agent will utilize for the purpose of
returning the stock to the original owners as necessary under the terms
and conditions of this Agreement.
2.06 Omicron will register all shares under this Agreement with the Securities
and Exchange Commission.
2.07 All shares delivered and deposited with the escrow agent shall have a
legend placed upon them that "these shares are subject to an Option
Acquisition Agreement between Omicron and ViaSpace, dated October 12,
1999. Anyone purchasing these shares takes them subject to the rights
afforded the parties in this Agreement".
2.08 will act as escrow agent for both the Purchaser and the Vendor
and will hold all shares transferred in escrow pursuant to this Agreement
until closing.
<PAGE> 4
ARTICLE THREE-REPRESENTATIONS AND WARRANTIES OF VIASPACE
3.01 Authorization
This Agreement has been duly authorized, executed and delivered by ViaSpace and
is a legal, valid and binding obligation of ViaSpace, enforceable against
ViaSpace by the Omicron in accordance with its terms.
3.02 No Other Agreements to Purchase
No Person other than Omicron has any written or oral agreement or option or any
right or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option for the purchase or acquisition from ViaSpace of
any of the Technology
3.03 No Violation
The execution, delivery and performance of this Agreement by ViaSpace and the
consummation of the transactions herein provided for will not, to the best of
the knowledge ViaSpace, result in:
(a) the breach or violation in any material respect of any of the provisions
of, or constitute a default under, or conflict with or cause the
acceleration of any obligation of ViaSpace under:
(i) any Contract to which ViaSpace is a party or by which it is or its
Technology is bound;
(ii) any provision of the constating documents or by-laws or resolutions of the
board of directors (or any committee thereof) of ViaSpace;
(iii) any judgment, decree, order or award of any court, governmental body or
arbitrator having jurisdiction over ViaSpace;
(iv) any licence, permit, approval, consent or authorization held by ViaSpace;
or
(v) any applicable law, statute, ordinance, regulation or rule; nor
(b) the creation or imposition of any Encumbrance on the option in respect of
the Technology offered by Caltech.
(c) that ViaSpace will obtain from Caltech approval of the sale of the option
in connection with the Technology.
ARTICLE FOUR-REPRESENTATIONS AND WARRANTIES OF OMICRON
The Purchaser hereby represents and warrants to the Vendor and the Shareholder
as follows and acknowledges and confirms that the Vendor and the Shareholder are
relying on such representations and warranties in connection with the sale of
the Purchased Assets.
<PAGE> 5
4.01 Organization
The Purchaser is a corporation duly incorporated and organized and validly
subsisting under the laws of the State of Florida and has the corporate power to
enter into this Agreement and to perform its obligations hereunder.
4.02 Authorization
This Agreement has been duly authorized, executed and delivered by Omicron and
is a legal, valid and binding obligation of the Omicron, enforceable against
Omicron by ViaSpace in accordance with its terms.
4.03 No Violation
The execution and delivery of this Agreement by Omicron and the consummation of
the transactions herein provided for will not result in the violation of, or
constitute a default under, or conflict with or cause the acceleration of any
obligation of Omicron under:
(a) any Contract to which Omicron is a party or by which it is bound;
(b) any provision of the constating documents or by-laws or resolutions of the
board of directors (or any committee thereof) or shareholders of Omicron;
(c) any judgment decree, order or award of any court, governmental body or
arbitrator having jurisdiction over Omicron; or
(d) any applicable law, statute, ordinance, regulation or rule.
4.04 Consents and Approvals
There is no requirement for Omicron to make any filing with, give any notice to
or obtain any licence, permit, certificate, registration, authorization, consent
or approval of, any government or regulatory authority as a condition to the
lawful consummation of the transactions contemplated by this Agreement.
ARTICLE FIVE-MISCELLANEOUS
5.01 Currency
Unless otherwise indicated, all dollar amounts referred to in this Agreement or
the use of the symbol "S" shall be deemed to refer to United States dollars.
<PAGE> 6
5.02 Sections, Headings and Party Drafting
The division of this Agreement into Articles, Sections and Paragraphs and the
insertion of headings are for convenience of reference only and shall not affect
the interpretation or construction of this Agreement. Unless otherwise
indicated, any reference in this Agreement to an Article, Section, Paragraph or
Schedule refers to the specified Article, Section or Paragraph of or Schedule to
this Agreement. Each party hereto acknowledges that it and its legal advisors
have reviewed and participated in settling the terms of this Agreement. Each of
the parties hereto agree that any rule of construction or doctrine of
interpretation which has the result of construing or interpreting any ambiguity
against the drafting party shall not be applicable in the interpretations of
this Agreement.
5.03 Number, Gender and Person
In this Agreement, words imparting the singular number shall include the plural
and vice versa, and words importing the use of any gender shall include all
genders.
5.04 Entire Agreement
This Agreement (including the Schedules and Exhibits referred to herein, which
are hereby incorporated by reference) constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements, prior drafts of this Agreement, understandings, negotiations and
discussions, whether written or oral, between the parties with respect to the
subject matter of this Agreement. There are no conditions, covenants,
agreements, representations, warranties or other provisions, express or implied,
collateral, statutory or otherwise, relating to the subject matter hereof except
as herein provided. Without limiting the generality of the foregoing, the
memorandum of understanding dated August 7, 1998 together with the addendum
dated September 23,1998 are hereby superceded by this Agreement. Neither this
Agreement nor any provisions hereof is intended to confer upon any Person other
than the parties hereto any rights or remedies hereunder.
5.05 Time of the Essence
Time shall be of the essence of this Agreement and of every part hereof and no
extension or variation to this Agreement shall operate as a waiver of this
provision.
5.06 Applicable Law
This Agreement shall be construed, interpreted and enforced in accordance with,
and the respective rights and obligations of the parties shall be governed by,
the laws of the State of Florida and the federal laws of the United States of
America applicable therein without reference to any principles of conflicts of
laws, and each party irrevocably and unconditionally attorns to the
non-exclusive jurisdiction of the Courts of Florida and all courts competent to
hear appeals therefrom with respect to any matter arising hereunder or related
hereto.
<PAGE> 7
5.07 ENUREMENT
This Agreement shall enure to the benefit of and shall be binding on and
enforceable by the parties hereto and, where the context so permits, their
respective heirs, executors, legal personal representatives and successors.
5.08 ASSIGNMENT
No party hereto may assign either this Agreement or any of its rights, interests
or obligations hereunder without the prior written consent of each other party,
which consent shall not be unreasonably withheld.
5.09 AMENDMENTS; NO WAIVERS
(a) Any provision of this Agreement may be amended or waived if, and only if,
such amendment or waiver is in writing and signed, in the case of any
amendment, by all parties hereto, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No waiver by a party of any default, misrepresentation or breach of
warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation or
breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent occurrence. No failure or
delay by a party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
5.10 NOTICES
All notices, requests, demands, claims and other communications hereunder shall
be in writing. Any notice, request, demand, claim, or other communications
hereunder shall be deemed duly given (i) if personally delivered, when so
delivered, (ii) if mailed, two Business Days after having been sent by
registered or certified mail, return receipt requested, postage prepaid and
addressed to the intended recipient as set forth below, (iii) if given by telex
or telecopier, once such notice or other communication is transmitted to the
telex or telecopier number specified below and the appropriate answer back or
telephonic confirmation is received, provided that such notice or other
communication is promptly thereafter mailed in accordance with the provisions of
clause (ii) above or (iv) if sent through an overnight delivery service in
circumstances under which such service guarantees next day delivery, the day
following being so sent:
If to Omicron: Suite 2202 - 808 Nelson St., Vancouver,
B.C. Canada V6Z 2112
If to Viaspace: 2400 Lincoln Ave., Altadena, CA, USA
Any party may give any notice, request, demand, claim or other communication
hereunder using any other means (including ordinary mail or electronic mail),
but no such notice, request, demand, claim
<PAGE> 8
or other communication shall be deemed to have been duly given unless and until
it actually is received by the individual for whom it is intended. Any party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
5.11 Closing Date
The date of closing of this transaction shall be taken as the aforementioned
date of this Agreement as indicated on Page 1.
5.12 Facsimile Copy
A facsimile copy of this Agreement duly signed and executed can be taken as an
original by the parties of this Agreement hereto.
IN WITNESS WHEREOF the parties to this Agreement have executed this Agreement.
)
) Omicron Technologies, Inc.
)
________________________ )per:_____________________________
Witness ) Sak Narwal, CFO
)
) ViaSpace Technologies LLC
)
)
________________________ )per:_____________________________
Witness ) Sam Shehayeb, CFO
<PAGE> 1
EXHIBIT 6.7
ACKNOWLEDGEMENT/AGREEMENT
BETWEEN GARY ROBINSON AND OMICRON TECHNOLOGIES, INC.
<PAGE> 2
EXHIBIT 6.7
ACKNOWLEDGEMENT
DATED this 22nd day of October, 1999
BETWEEN:
Gary Robinson, an individual residing in the Province of British Columbia,
(Hereinafter referred to as "Gary")
OF THE FIRST PART
- -AND-
Omicron Technologies, Inc. a corporation with its register office in the
state of Florida.
(Hereinafter referred to as "Omicron")
OF THE SECOND PART
WHEREAS, Gary has transferred on behalf of Omicron certain common stock
owned by him in satisfaction of services rendered by individuals and/or
companies ("third parties") to Omicron as set out in Schedule "A" attached
hereto.
WHEREAS, Gary released said common stock on the understanding that
Omicron would then reimburse said common stock to Gary.
AND WHEREAS, Omicron has acknowledged that such common stock will be
returned to Gary forthwith.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT, in consideration of the
foregoing premises, the mutual covenants, agreements, representations,
warranties and indemnities of the parties herein set forth, and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each party), the parties hereto agree as follows:
1. Omicron will reimburse back to Gary the common stock that Gary has
transferred to third parties on behalf of Omicron as expeditiously as
possible.
<PAGE> 3
2. Furthermore, if Gary were to transfer additional common stock to third
parties in satisfaction of services rendered by such third parties,
Omicron agrees that Gary shall be reimbursed back in the same manner as
set out in Paragraph 1.
3. Additionally the type of common stock received by Gary shall be in the
same form as the shares that Sterling has transferred to third parties,
in that if such stock is free trading, then Omicron will return free
trading shares to Sterling. If the shares transferred by Gary have a
restriction on them, then Omicron will return to Sterling shares with
the same restriction.
4. Omicron agrees to indemnify Gary in the event that the unintended
nature of the aforementioned transfer results in any income taxes
payable by Gary.
5. This Agreement shall be construed, interpreted and enforced in
accordance with, and the respective rights and obligations of the
parties shall be governed by, the laws of the State of Florida and the
federal laws of the United States of America applicable therein without
reference to any principles of conflicts of laws, and each party
irrevocably and unconditionally attorns to the non-exclusive
jurisdiction of the Courts of Florida and all courts competent to hear
appeals therefrom with respect to any matter arising hereunder or
related hereto.
6. This Agreement shall enure to the benefit of and shall be binding on
and enforceable by the parties hereto and, where the context so
permits, their respective heirs, executors, legal personal
representatives and successors.
IN WITNESS WHEREOF the parties to this Agreement have executed this Agreement.
)
[ILLEGIBLE] ) Omicron Technologies, Inc.
- ------------------------------ )
Witness ) per: /s/ DAVID NAYLOR
) ----------------------------------
) David Naylor, Secretary/Treasurer
[ILLEGIBLE] )
- ------------------------------ ) /s/ GARY C. ROBINSON
Witness ) ----------------------------------
Gary Robinson
<PAGE> 4
SCHEDULE "A" - SHARE TRANSFERS
<TABLE>
<S> <C> <C>
8/25/98 990,000 Kamal Alawas
8/27/99 200,000 Dynasty Consulting
TOTAL 1,190,000 SHARES
</TABLE>
<PAGE> 1
EXHIBIT 6.8
Acknowledge/Agreement between Sterling Klein
and Omicron Technologies, Inc.
<PAGE> 2
EXHIBIT 6.8
ACKNOWLEDGEMENT
DATED this 22nd day of October, 1999
BETWEEN:
Sterling Klein, an individual residing in the Province of British
Columbia,
(Hereinafter referred to as "Sterling")
OF THE FIRST PART
- -AND-
Omicron Technologies, Inc. a corporation with its register office in
the state of Florida.
(Hereinafter referred to as "Omicron")
OF THE SECOND PART
WHEREAS, Sterling has transferred on behalf of Omicron certain common
stock owned by him in satisfaction of services rendered by individuals and/or
companies ("third parties") to Omicron as set out in Schedule "A" attached
hereto.
WHEREAS, Sterling released said common stock on the understanding that
Omicron would then reimburse said common stock to Sterling.
AND WHEREAS, Omicron has acknowledged that such common stock will be
returned to Sterling forthwith.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT, in consideration of the
foregoing premises, the mutual covenants, agreements, representations,
warranties and indemnities of the parties herein set forth, and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each party), the parties hereto agree as follows:
1. Omicron will reimburse back to Sterling the common stock that Sterling
has transferred to third parties on behalf of Omicron as expeditiously
as possible.
<PAGE> 3
2. Furthermore, if Sterling were to transfer additional common stock to
third parties in satisfaction of services rendered by such third
parties, Omicron agrees that Sterling shall be reimbursed back in the
same manner as set out in Paragraph 1.
3. Additionally the type of common stock received by Sterling shall be in
the same form as the shares that Sterling has transferred to third
parties, in that if such stock is free trading, then Omicron will
return free trading shares to Sterling. If the shares transferred by
Sterling have a restriction on them, then Omicron will return to
Sterling shares with the same restriction.
4. Omicron agrees to indemnify Sterling in the event that the unintended
nature of the aforementioned transfer results in any income taxes
payable by Sterling.
5. This Agreement shall be construed, interpreted and enforced in
accordance with, and the respective rights and obligations of the
parties shall be governed by, the laws of the State of Florida and the
federal laws of the United States of America applicable therein without
reference to any principles of conflicts of laws, and each party
irrevocably and unconditionally attorns to the non-exclusive
jurisdiction of the Courts of Florida and all courts competent to hear
appeals therefrom with respect to any matter arising hereunder or
related hereto.
6. This Agreement shall enure to the benefit of and shall be binding on
and enforceable by the parties hereto and, where the context so
permits, their respective heirs, executors, legal personal
representatives and successors.
IN WITNESS WHEREOF the parties to this Agreement have executed this
Agreement.
) Omicron Technologies, Inc.
)
[ILLEGIBLE] )
- ----------------------------- ) per: /s/ DAVID NAYLOR
Witness ) ----------------------------------
) David Naylor, Secretary/Treasurer
)
)
)
[ILLEGIBLE] ) /s/ STERLING KLEIN
- ----------------------------- ) ----------------------------------
Witness ) Sterling Klein
)
)
<PAGE> 4
SCHEDULE "A" - SHARE TRANSFERS
<TABLE>
<S> <C> <C>
7/31/98 10,000 Kamal Alawas
8/25/98 7,000 Seaton Capital
12/2/98 5,000 Philip Fox
2/1/99 250,000 P.D.I.
3/17/99 2,000 Ed Taxin Network
4/8/99 2,000 Ed Taxin Network
5/7/99 2,000 Ed Taxin Network
5/28/99 15,000 Skip Nordstrom
5/28/99 4,000 David Clark-Burton
6/8/99 5,000 Jay Jones
6/10/99 15,000 Skip Nordstrom
6/23/99 2,000 Ed Taxin Network
6/23/99 50,000 Steve Zelden
6/25/99 30,000 Doug Bell
7/7/99 50,000 Value Finder
7/7/99 41,500 Market Information Communication
7/7/99 100,000 North American Corp. Consultants
7/15/99 50,000 Steve Zelden
7/16/99 100,000 National Capital
7/19/99 25,000 Joe Copia
7/20/99 25,000 Research Investment Group
7/21/99 35,000 Capital Research Group
7/27/99 15,000 Joe Copia
7/27/99 10,000 Research Investment Group
7/27/99 25,000 Capital Research Group
7/27/99 20,000 Cam Birge
7/28/99 250,000 Dynasty Consulting
7/30/99 30,000 North American Corp. Consultants
8/27/99 13,000 Philip Fox
9/7/99 10,000 Research Investment Group
9/7/99 10,000 Capital Research Group
9/7/99 8,000 Market Information Communication
9/7/99 10,000 Stacey Mischke
9/17/99 15,000 Colin Takara
TOTAL 1,241,500 SHARES
</TABLE>
<PAGE> 1
EXHIBIT 6.9
SHARE EXCHANGE AGREEMENT BETWEEN DYNCOM INC.
AND OMICRON TECHNOLOGIES, INC.
<PAGE> 2
Exhibit 6.9
AGREEMENT
This is an agreement, dated as of the 19th day of October, 1999, by and
between:
DynCom Inc.
2301 Research Boulevard, Suite 203
Fort Collins, CO 80526-1825 ("DynCom")
Telephone: 970.416.0001
Fax: 970.472.4068
Omicron Technologies, Inc.
114 W. Magnolia Street
Suite 400-128
Bellingham, WA 98225 ("Omicron")
Telephone: 604.681.9035
Fax: 604.681.9032
WHEREAS, Omicron is in the business of acquisition, research and
development, and marketing of leading edge technologies for the aerospace,
telecommunications, defense, consumer electrons and Internet-based business
concepts, and
WHEREAS, DynCom is in the business of combining smart device,
biometric, proprietary, and Internet/ intranet technologies into effective and
efficient e-solutions, e-applications and e-products, and
WHEREAS, Omicron has provided DynCom with its Summary Business Plan
dated August 1999, and has established a corporate web site at
www.omicrontechnolgies.com, and
WHEREAS, DynCom has provided Omicron with its Confidential Private
Placement Memorandum ("504") dated February 1, 1999, as updated and revised as
of July 15, 1999, and has established a corporate web site at www.d-c.com, and
WHEREAS, Omicron and DynCom each wish to establish a foundation that
will permit each of them to share technologies for mutual benefit, to develop a
solid and synergistic relationship, and to establish a reasonable basis for
commitments and productive efforts,
NOW, THEREFORE, DynCom and Omicron do hereby agree and covenant as
follows:
1. REPRESENTATIONS AND WARRANTIES. Each of the parties hereto hereby
warrants to the other as follows, and each party hereto confirms that the other
is
<PAGE> 3
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
relying upon the accuracy of each of such representations and warranties in
connection with the acquisition of the shares and warrants that are the subject
matter of this agreement (the "Shares"), and the completion of the transactions
set out herein:
1.01 REPRESENTATIONS REGARDING THE SHARES.
(a) All of the Shares are free and clear of any and all
covenants, conditions, restrictions, voting trust
arrangements, rights of first refusal, options, liens and
adverse claims and rights whatsoever (collectively, "Share
Encumbrances"), and on the Closing Date, each of the parties
hereto will deliver to the other, good and marketable title to
such Shares free and clear of any and all Share Encumbrances
except as may be required by the applicable Securities laws
governing this transaction; and
(b) The person and persons acting for each of the respective
parties hereto has/have the full right power and authority to
enter into this agreement.
1.02 NON-CONTRAVENTION. The execution, delivery and performance of this
agreement, and the consummation of the transactions provided for herein, does
not (a) contravene or conflict with or constitute a material violation of any
provision of any applicable law binding upon or applicable to either of the
parties hereto or (b) result in the creation or imposition of any lien.
1.03 LITIGATION. There are no actions, suits, hearings, arbitrations,
audits, charges, orders (draft or otherwise), judgments, injunctions, decrees,
awards, writs, proceedings (public or private) or investigations that have been
brought by or against any governmental authority or any other person pending or,
to the knowledge of either of the parties hereto, threatened (collectively,
"Proceedings"), against or affecting the Shares or that seek to prevent, enjoin,
alter or delay the transactions provided for by this agreement.
1.04 REQUIRED CONSENTS. Schedule A lists all governmental or other
registrations, filings, applications, notices, transfers, consents, approvals,
orders, qualifications or waivers required under applicable law or otherwise
required to be obtained or made with any governmental authority to be obtained
by either of the parties hereto.
1.05 FULL DISCLOSURE. The information contained in the documents,
certificates and written statements (including this agreement and the schedules
and exhibits hereto) furnished to either party by or on behalf of the other
party for use in connection with this agreement or the transactions provided for
by this agreement is true and complete in all material respects and does not, to
the best of the knowledge of the providing party and of the receiving party
after conducting an inquiry which a reasonably prudent person would make under
the circumstances,
Page 2
<PAGE> 4
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
1.06 EXISTENCE AND POWER. Each of the parties hereto is a corporation
duly incorporated, organized and validly existing under the laws of, in the case
of Omicron, the State of Florida, and in the case of DynCom, the State of
Colorado, and each has all corporate power and all governmental licenses,
authorizations, permits, consents and approvals required to carry on the
business as now conducted and to own and operate the business as now owned and
operated. Each of the corporations is not required to be qualified to conduct
business in any jurisdiction other than: (a) the jurisdictions in which each of
said parties is duly qualified to do business and (b) such jurisdictions where
the failure to be so qualified, whether individually or in the aggregate, would
not have a material adverse effect. No proceedings have been taken or authorized
by either of the parties hereto, or by any other person, with respect to the
bankruptcy, insolvency, liquidation, dissolution or winding-up of either of the
parties hereto or with respect to any amalgamation, merger, consolidation,
arrangement or reorganization relating to either of the parties hereto.
1.07 AUTHORIZATION. The execution, delivery and performance by each of
the parties hereto of this agreement and the consummation thereby of the
transactions provided for herein are within the respective powers of each of the
parties hereto and have been duly authorized by all necessary action on the
respective parts of each of the parties hereto. This agreement has been duly and
validly executed by each of the parties hereto and constitutes a legal, valid
and binding agreement of each such party enforceable in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights and
subject to general principles of equity.
1.08 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by each of the parties hereto of this agreement requires no action
by, consent or approval of, or filing with, any governmental authority other
than as expressly referred to in this agreement.
1.09 NON-CONTRAVENTION. The execution, delivery and performance of this
agreement by each of the parties hereto, and the consummation by each such party
of the transactions provided for herein, do not and will not (a) contravene or
conflict with the articles or bylaws of each of the respective parties; (b)
contravene or conflict with or constitute a material violation of any provision
of any applicable law binding upon or applicable to each of the parties hereto,
the business or the Shares and would not, individually or in the aggregate have
a material adverse effect; (c) constitute a default under or give rise to any
right of termination, cancellation or acceleration of, or to a loss of any
benefit to which each of the parties hereto is entitled, under any contract to
which either of the parties hereto is a party or any permit or similar
authorization relating to such party, its business or the Shares by which such
party, its business or the Shares may be bound or affected; or (d) result in the
creation or imposition of any lien.
Page 3
<PAGE> 5
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
1.10 OMICRON CAPITAL STOCK. The authorized capital stock of Omicron
consists solely of:
(a) 50,000,000 shares of common shares, of which 29,846,460 common
shares are issued and outstanding on the date hereof and held
by shareholders, and
(b) All such issued and outstanding shares have been duly and
validly authorized and issued and are validly outstanding,
fully paid and non-assessable. The shares represent all of the
issued and outstanding shares of Omicron. Omicron does not
hold any of the issued and outstanding shares in the treasury
of the Corporation, and there are not outstanding (i) any
options, warrants, rights of first refusal or other rights to
purchase any shares of Omicron except as set out in Schedule B
attached hereto and as contemplated by this agreement, (ii)
any securities convertible into or exchangeable for such
shares except as set out in Schedule B attached hereto or
(iii) any other commitments of any KIND FOR the issuance of
additional shares of Omicron, options, warrants or other
securities of Omicron except as set out in Schedule B attached
hereto.
1.11 DYNCOM CAPITAL STOCK. The authorized capital stock of DynCom
consists solely of:
(a) 100,000,000 shares of common shares no par value, of which
3,315,000 common shares are issued and outstanding on the date
hereof and held by shareholders, and
(b) 5,000,000 shares of preferred shares, non-voting, authorized
but none issued and outstanding, and
(c) All such issued and outstanding shares have been duly and
validly authorized and issued and are validly outstanding,
fully paid and non-assessable. The shares represent all of the
issued and outstanding shares of DynCom. DynCom does not hold
any of the issued and outstanding shares in the treasury of
the Corporation, and there are not outstanding (i) any
options, warrants, rights of first refusal or other rights to
purchase any shares of Omicron except as set out in Schedule C
attached hereto and as contemplated by this agreement, (ii)
any securities convertible into or exchangeable for such
shares except as set out in Schedule C attached hereto or
(iii) any other commitments of any kind for the issuance of
additional shares of DynCom, options, warrants or other
securities of DynCom except as set out in Schedule C attached
hereto.
2. DYNCOM SHARES. DynCom hereby agrees to deliver to Omicron at Closing 600,000
shares of the common stock of DynCom Inc., represented by a certificate
Page 4
<PAGE> 6
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
duly signed and sealed, which shares shall be free and clear of all encumbrances
and liens, except that such shares may, pursuant to the securities laws and
regulations of the United States of America, bear a restrictive legend limiting
transfer in accordance with such laws and regulations.
3. DYNCOM WARRANTS. DynCom hereby agrees to deliver to Omicron at Closing
600,000 warrants, each warrant being for one share of the common stock of DynCom
Inc., which shares, when the warrants are exercised, shall be represented by a
certificate duly signed and sealed, which shares shall be free and clear of all
encumbrances and liens, except that such shares shall, pursuant to the
securities laws and regulations of the United States of America, bear a
restrictive legend limiting transfer in accordance with such laws and
regulations. The form of the warrants and the terms thereof are set out in
Exhibit A.
4. OMICRON SHARES. Omicron hereby agrees to deliver to DynCom at Closing 200,000
shares of the common stock of Omicron Technologies, Inc., represented by a
certificate duly signed and sealed, which shares shall be free and clear of all
encumbrances and liens, except that such shares may, pursuant to the securities
laws and regulations of the United States of America, bear a restrictive legend
limiting transfer in accordance with such laws and regulations.
5. REGISTRATION OF SHARES. The parties hereto, Omicron and DynCom, do each
hereby agree that, subject to the securities laws and regulations of the United
States of America as in effect from time to time and further subject to
reasonableness under the overall circumstances and without undue cost and
effort, to use reasonable best efforts to cause the common stocks that are the
subject of this agreement to become registered for public trading. Either of the
parties hereto may at any time request the other party to cause the other
party's shares that are the subject of this agreement to be registered, which
request shall not be unreasonably denied, provided that the requesting party
provides the necessary funds and assistance to enable such registration. Nothing
in this paragraph nor in this agreement precludes the parties hereto from
mutually agreeing to further provisions regarding the status or disposition of
the shares that are the subject of this agreement.
6. CLOSING. The parties hereto, Omicron and DynCom, do each hereby agree that
the Closing, at which time and place the respective documents are to be
exchanged, shall be held under the auspices of such person and at such place as
the parties may mutually agree in writing on or before Friday, October 29, 1999,
at 5:00 p.m., PDT. The parties hereto, Omicron and DynCom, do each hereby agree
to use their best efforts to cause the Closing to take place as provided herein.
If the Closing does not take place on or before such time due to the actions or
inactions of one party, the other party has the right to terminate this
agreement without further obligation, or to declare that this agreement is void
ab initio.
7. ENTIRE AGREEMENT. This agreement (including the schedules and exhibits
referred to herein, which are hereby incorporated by reference) constitutes the
entire agreement between parties hereto with respect to the subject matter
hereof
Page 5
<PAGE> 7
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
and supersedes all prior agreements, understandings and negotiations, both
written and oral, between the parties with respect to the subject matter of this
agreement.
8. THIRD PARTIES. Neither this agreement nor any provision hereof is intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
9. NOTICES. All notices, requests, demands, claims and other communications
hereunder shall be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given (i) if personally delivered,
when so delivered, (ii) if mailed, two business days after having been sent by
registered or certified mail, return receipt requested, postage prepaid and
addressed to the intended recipient as set forth above, (iii) if given by telex
or fax, once such notice or other communication is transmitted to the telex or
fax number set forth above and the appropriate answer BACK or telephonic
confirmation is received, provided that such notice or other communication is
promptly thereafter mailed in accordance with the provisions of clause (ii)
above or (iv) if sent through an overnight delivery service in circumstances
under which such service guarantees next day delivery, the day following being
so sent. Any party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
10. AMENDMENTS; NO WAIVERS.
(a) Any provision of this agreement may be amended or waived if,
and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by ALL PARTIES hereto, or
in the case of a waiver, by the party against whom the waiver
is to be effective. This agreement may be assigned, modified,
changed or amended only by the written consent of both of the
parties hereto, which consent shall not be unreasonably
withheld.
(b) No waiver by a party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional
or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of
any prior or subsequent occurrence. No failure or delay by a
party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
Page 6
<PAGE> 8
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
cumulative and not exclusive of any rights or remedies
provided by law.
11. EXPENSES. All costs and expenses incurred in connection with this agreement
and enclosing and carrying out the transactions provided for herein shall be
paid by the party incurring such cost or expense. This provision shall survive
the termination of this agreement.
12. SUCCESSORS AND ASSIGNS. This agreement shall be binding upon and enure to
the benefit, of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and permitted assigns. No
party hereto may assign either this agreement or any of its rights, interests or
obligations hereunder without the prior written approval of each other party,
which approval shall not be unreasonably withheld.
13. GOVERNING LAW. This agreement shall be governed by, and interpreted and
enforced in accordance with, the laws in force in the State of Colorado and the
federal laws of the United States of America applicable therein (excluding any
conflict of laws rule or principle that might refer such interpretation to the
laws of another jurisdiction). Each party irrevocably submits to the
nonexclusive jurisdiction of the courts of Colorado with respect to any matter
arising hereunder or related hereto, subject to the provisions of Article 20 of
this agreement.
14. COUNTERPARTS; EFFECTIVENESS. This agreement and the documents relating to
the transactions contemplated by this agreement may be signed in any number of
counterparts and the signatures delivered by telecopy, each of which shall be
deemed to be an original, with the same effect as if the signatures thereto were
upon the same instrument and delivered in person. This agreement and such
documents shall become effective when each party thereto shall have received a
counterpart thereof signed by the other parties thereto. In the case of delivery
by telecopy by any party, that party shall forthwith deliver a manually executed
original to each of the other parties.
15. CAPTIONS. The captions herein are included for convenience of reference only
and shall be ignored in the construction or interpretation hereof. All
references to an Article or Section include all subparts thereof.
16. SEVERABILITY. If any provision of this agreement, or the application thereof
to any person, place or circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable or void, the remainder of this
agreement and such provisions as applied to other persons, places and
circumstances shall remain in full force and effect only if, after excluding the
portion deemed to be unenforceable, the remaining terms shall provide for the
consummation of the transactions contemplated hereby in substantially the same
manner as originally set forth at the later of the date this agreement was
executed or last amended.
17. CONSTRUCTION. The parties hereto intend that each representation, warranty,
and covenant contained herein shall have independent significance. If any party
Page 7
<PAGE> 9
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
has breached any representation, warranty or covenant contained herein in any
respect, the fact that there exists another representation, warranty or covenant
relating to the same subject matter (regardless of the relative levels of
specificity) that the party has not breached shall not detract from or mitigate
the fact that the party is in breach of the first representation, warranty or
covenant.
18. CUMULATIVE REMEDIES. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
19. TRANSMISSION BY FACSIMILE. The parties hereto agree that this agreement may
be transmitted by facsimile or such similar device and that the reproduction of
signatures by facsimile or such similar device will be treated as binding as if
originals and each party hereto undertakes to provide each and every other party
hereto with a copy of the Agreement bearing original signatures forthwith upon
demand.
20. ARBITRATION. In the event that a dispute arises with respect to this
agreement, the parties hereto, DynCom and Omicron, agree to seek in good faith
to resolve the dispute among themselves, and, if such efforts are not fruitful,
to promptly seek third party mediation. In the event that such efforts do not
promptly resolve the dispute, the parties do each agree that the dispute may be
submitted to binding arbitration under the auspices of the American Arbitration
Association and pursuant to the rules thereof, with the prevailing party to be
compensated for all reasonable legal expenses. Each party hereto hereby
renounces any and all rights to seek redress from the courts, except to enforce
a decision by rendered by arbitration.
IN WITNESS WHEREOF, each of the parties hereto has caused this
agreement to be signed and sealed, as of the date set forth above.
OMICRON TECHNOLOGIES, INC. DYNCOM INC.
By: /s/ B. E. Sleeman By: /s/ Fred Zeigler
----------------------- ---------------------------------
Signature Signature
B. E. Sleeman Fred Zeigler
- -------------------------- -------------------------------------
Printed Name Printed Name
President Chairman
- ------------------------- -------------------------------------
Title Title
/s/ Sak Narwal /s/ Michael B. Maw
- ------------------------- -------------------------------------
Page 8
<PAGE> 10
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
Witness Signature Witness Signature
Sak Narwal Michael B. Maw
- -------------------------- ----------------------------------
Printed Name Printed Name
CFO CFO, Secretary and Treasurer
- -------------------------- ----------------------------------
Title Title
Page 9
<PAGE> 11
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
SCHEDULE A.
Pursuant to the provisions of Section 1.04, this Schedule A lists all
governmental or other registrations, filings, applications, notices, transfers,
consents, approvals, orders, qualifications or waivers required under applicable
law or otherwise required to be obtained or made with any governmental authority
to be obtained by either of the parties hereto:
As to DynCom Inc.:
None.
As to Omicron Technologies, Inc.:
None.
PAGE 10
<PAGE> 12
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
SCHEDULE B.
Pursuant to the provisions of Section 1.10(b), this Schedule B lists all
outstanding (i) options, warrants, rights of first refusal or other rights to
purchase any shares of Omicron, other than those as contemplated by this
agreement, (ii) any securities convertible into or exchangeable for such shares
or (iii) any other commitments of any kind for the issuance of additional shares
of Omicron, options, warrants or other securities of Omicron:
B.1. Common Stock Options Outstanding
Ess Inc. 250,000 @ $1.00 per share
Fairwind Technologies Ltd. 6,025 @ $2.31 per share
Common Stock Options for existing and future officers, directors,
consultants and employees of Omicron will be considered and issued as
warranted by Omicron's management.
B.2. Warrants convertible to common stock of Omicron may be issued in the future
for services rendered or other valuable consideration to Omicron.
B.3. Common stock of Omicron may be issued as consideration for future
acquisitions such as the remaining interests in the Active Pixel Sensor
(APS) technology and APS Wireless technology. Common stock Omicron may also
be issued in the future in conjunction with private placement financings.
PAGE 11
<PAGE> 13
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
SCHEDULE C.
Pursuant to the provisions of Section 1.11(c), this Schedule C lists all
outstanding (i) options, warrants, rights of first refusal or other rights to
purchase any shares of DynCom, other than those as contemplated by this
agreement, (ii) any securities convertible into or exchangeable for such shares
or (iii) any other commitments of any kind for the issuance of additional shares
of DynCom, options, warrants or other securities of DynCom:
C.1. On May 15, 1999, the Board of Directors of DynCom Inc. approved the
Directors and Advisors Option Plan which provides for the issuance of options to
purchase up to 180,000 of DynCom's common stock at an exercise price of $0.10
per share. Each of the Directors elected at the 1999 Annual Meeting of
Shareholders, each Director elected prior to the 2000 Annual Meeting of
Shareholders, and advisors participating on advisory boards or committees, are
eligible to receive the options. Options may be granted under the Directors and
Advisors Option Plan for services until the 2000 Annual Meeting of Shareholders.
Options subject to issuance under the plan expire on the business day prior to
the 2001 Annual Meeting of Shareholders. As of October 18, 1999, 4,500 such
options have been issued; none of these options has been exercised. Common Stock
Options for existing and future officers, directors, advisors, consultants and
employees of DynCom will be considered and issued as warranted by DynCom's
management.
C.2. On May 15, 1999, the Board of Directors of DynCom Inc. approved the
Officers and Advisors Option Plan which provides for the issuance of options to
purchase up to 600,000 of DynCom's common stock at an exercise price of $0.10
per share. Each officer elected at or after the 1999 Annual Meeting of Directors
and prior to the 2000 Annual Meeting of Shareholders, and advisors participating
on advisory boards or committees, are eligible to receive the options. Options
may be granted under the Officers and Advisors Option Plan for services until
the 2000 Annual Meeting of Shareholders. Options subject to issuance under the
plan expire on the business day prior to the 2001 Annual Meeting of
Shareholders. As of October 18, 1999, 150,000 such options have been issued;
none of these options has been exercised. Common Stock Options for existing and
future officers, directors, advisors, consultants and employees of Omicron will
be considered and issued as warranted by Omicron's management.
C.3. On May 29, 1999, the Board of Directors approved the Shareholders Option
Plan. The Shareholders Option Plan is nonqualified and grants an option to
purchase one share of the Company's common stock for every five shares held by
shareholders of record on May 29, 1999. There are a total of 533,600 common
shares subject to option under the plan. The options expire on the business day
preceding the 2000 Annual Meeting of Shareholders. The options are exercisable
at the lower of $0.70 per share, or, if the shares become publicly traded, at
70% of the average price of shares traded on the day the option is exercised.
Options for the 533,600 shares of common stock are outstanding; none of these
options has been exercised. DynCom does not presently anticipate any further
shareholder option plans, but such may be issued if warranted by DynCom's
management.
C.4. On September 13, 1999, the Corporation entered into an agreement with Dr.
Jay Ellenby, a member of the Corporation's Healthcare Advisory Board, pursuant
to which Dr. Ellenby agreed to lend $50,000 to DynCom, and incidental to the
transaction DynCom agreed to issue 60,000 shares to Dr. Ellenby. Dr. Ellenby
made a loan of $10,000, and the agreement is being renegotiated. Consideration
is being given to a larger amount of money, approximately $200,000, as to which
the terms and the number of shares has not yet been fixed.
C.5. Warrants convertible to common stock of DynCom may be issued in the future
for services rendered and/or other valuable consideration to DynCom.
Page 12
<PAGE> 14
AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
EXHIBIT A
COMMON STOCK PURCHASE WARRANT
Attached
Page 13
<PAGE> 15
COMMON STOCK PURCHASE WARRANT
Exercise Price: $1.00
THIS WARRANT REPRESENTS THE RIGHT TO PURCHASE
UP TO 600,000 SHARES OF THE COMMON STOCK OF
DYNCOM INC.
FOR VALUE RECEIVED, DYNCOM INC., a Colorado corporation, (the Company), promises
to sell and deliver to OMICRON TECHNOLOGIES, INC. (the Holder) up to 600,000
shares of the Common Stock, no par value, of the Company, upon the payment by
the Holder to the Company of the price of $1.00 per share (being the Exercise
Price), in U. S. Funds and which will be accepted subject to collection. This
Warrant is issued on this 19th day of October, 1999.
TRANSFER RESTRICTION NOTICE.
This Warrant, and the securities issuable upon its exercise (in whole or part)
have not been registered under the Securities Act of 1933, as amended (the Act),
nor the securities laws of any other jurisdiction, and may not be sold,
transferred or otherwise disposed of unless:
i) an appropriate S.E.C. Registration Statement covering the
Warrants and their underlying securities is in effect; or
ii) Company counsel is satisfied that such registration is not
then required and that this Warrant and the underlying
securities may be sold, transferred or otherwise disposed of
in the manner contemplated without registration under the Act.
All Warrants presented for transfer must be accompanied by a duly executed and
completed Form Of Assignment. Prior to the effectiveness of any future
registration statement covering this Warrant Agreement, the Company may accept
or reject such transfer attempt, based upon its counsel's opinion as to whether
or not such an event may take place in the absence of an effective registration.
In case of rejection, the Company shall not have any legal obligation to
effectuate such transfer.
<PAGE> 16
1. WARRANT EXERCISE
The Holder shall be entitled to purchase up to 600,000 shares the Common Stock
of the Company, at any time from the date of this agreement, and from time to
time, until the Expiration Date.
To exercise this Warrant, in whole or in part, the Holder shall tender payment
in U.S. funds, to the Company of the Exercise Price per share, multiplied by the
number of shares bring purchased, with a properly completed Form Of Exercise,
together with this Original Warrant Agreement.
If an exercise is for less than the aforesaid shares, the Company shall issue a
new Warrant to the Holder, covering the unexercised shares, upon the same terms
and conditions hereof.
2. DEMAND REGISTRATION.
At any time prior to the Expiration Date, the Holder may by written notice to
the Company request that the Company cause a registration statement covering the
Warrant(s) and the underlying shares be filed with the Securities And Exchange
Commission, (S.E.C.) as expeditiously as possible after such notice. Subject to
reasonableness under the overall circumstances and without undue cost and
effort, the Company shall use its reasonable best efforts to cause such filing.
The Company shall not unreasonably deny any such request. The Holder shall bear
all of the reasonable cost and expenses to file such registration statement with
the S.E.C. and all applicable Blue Sky filings.
The Company shall not be obligated to file a registration statement with the
S.E.C. at a time when it would require a special financial audit be undertaken
to furnish the appropriate financial statements for such registration statement,
or when under the overall circumstances such a filing would not be in the best
interest of the Company.
The Holder shall cooperate fully with the Company by providing all necessary and
relevant information required to effectuate a registration statement.
3. PIGGYBACK REGISTRATION
At any time prior to the Expiration Date, should the Company file a new
registration statement under the Act covering any securities to be issued by the
Company, (other than a registration statement on Form S-8 or S-20 or any Form
which does not include substantially the same information as would be required
for the general registration of securities) the Company shall give prompt
written notice to the Holder, offering to include in such registration statement
any of the Warrants and underlying shares hereof. The Company
<PAGE> 17
shall bear all of the reasonable cost of such filings. The Holder must notify
the Company within twenty days of receipt of the aforesaid notice of his/her/its
intention to participate in this registration.
The Holder shall cooperate fully with the Company in the preparation of such
registration statement by furnishing information required for such filings. All
piggyback registration rights terminate on the Expiration Date.
4. STOCKHOLDER RIGHTS
By virtue of this Warrant, the Holder hereof is not entitled to any legal or
equitable rights, including voting rights, as a shareholder in the Company.
5. ANTI-DILUTION PROVISIONS
The number of shares underlying this Warrant may be proportionately increased in
the event that the Company causes to be more shares as a stock dividend or other
such reclassification, or conversely, proportionately decreased if a reverse
split or other such reclassification is declared. In the event that shareholders
are granted the right to purchase additional shares from the proceeds of a cash
dividend by the Company, such event shall be treated as a stock dividend as
relates to the Holder's anti-dilutive rights.
6. SUCCESSOR CORPORATION
All rights granted to the Holder hereof shall survive any merger, consolidation
or other business combination of the Company with another (successor) entity.
The Holder shall have the same anti-dilutive rights in such case, in the
securities of the new entity.
7. EXERCISE PRICE ADJUSTMENTS
Upon the occurrence of each event requiring an adjustment in the Exercise Price,
or the number of underlying shares, the Company shall give prompt written
notice, setting forth the computation used to arrive at the adjusted price or
number of underlying shares. The computations shall be made by the Company's
Chief Financial Officer or the Company's accountants. Such computations shall be
conclusive and binding upon the Holder unless the Holder gives written objection
to the Company within fourteen calendar days from the date of the Company's
initial notice.
8. DISSOLUTION OR LIQUIDATION OF THE COMPANY
In the event that the Company is dissolved, or otherwise liquidates a
substantial portion (i.e., 60% or more) of its assets with the intent to make a
distribution to shareholders of the
<PAGE> 18
proceeds therefrom (including the sale of assets of a wholly-owned subsidiary)
the Holder shall be entitled, after proper exercise of the Warrants, in whole or
in part, to participate in the distribution on the same terms and conditions as
are all of the other shareholders.
In such event, the Company shall give 30 days written notice to the Holder.
Failure of the Holder to exercise within 30 calendar days from the date of the
Company's notice, shall cause all such rights in the Warrants to terminate. The
Company may finalize the intended transaction but it may not make any
shareholder distribution during the 30 day notice period.
9. NON-ADJUSTMENT EVENTS
It is acknowledged and agreed that no price or quantity adjustments shall be
required in the event that the Company issues shares of its common stock: a)
upon the exercise of Warrants or options granted previously to the date hereof,
or b) pursuant to any stock option plan or employee benefit plan, or c) for any
purpose in connection with debt or equity offerings.
10. AVAILABLE SHARES
The Company agrees to reserve and keep available out of its authorized, and
issued capital shares, sufficient shares to cover the exercise of all of the
shares covered by this Warrant Agreement. Further, that upon issuance, such
shares shall be validly issued, fully paid and non-assessable.
11. MISCELLANEOUS
a) LOSS OF WARRANT. In the event of the loss, theft, destruction or mutilation
of this Warrant Agreement, the Company shall execute and deliver a new Warrant
in exchange for and upon the surrender and cancellation of such mutilated or
defaced Warrant. If the Warrant Agreement was lost or stolen, the Company may,
at its option, as a condition to the execution and delivery of a new Warrant
Agreement, require that the Holder produce satisfactory indemnity to the
Company. The Holder may be required to post a surety bond to protect the Company
from conflicting claims.
b) RECORD OWNER. At the time this Warrant is surrendered for exercise, together
with the completed Form of Exercise and the monetary consideration required, the
person so exercising shall be deemed to be the Holder of record, notwithstanding
that the stock transfer books of the Company shall then be closed, or that
certificates representing such securities shall be actually delivered to such
person.
c) FRACTIONAL SHARES. No fractional shares shall be issued under any
circumstances. The Holder may elect to remit additional funds to obtain the next
full share, or the Company may reimburse the Holder for such fractional amount.
In no event shall the
<PAGE> 19
Company issue more shares than were duly registered in accordance with the
federal and state securities laws, or to which an exemption therefrom applies.
d) NOTICES. All notices required hereunder shall be in writing, delivered by
certified, registered or express mail, return receipt requested, to the address
of record of the party being noticed. All time periods to be determined under
notice shall be so counted from the actual date of mailing. The address of
record for DynCom Inc. is: 2301 Research Boulevard, Suite 203, Fort Collins, CO
80526-1825. The Holder is responsible for providing DynCom with his/her/its
address of record.
e) STOCK ISSUANCE TAXES. The Company shall bear full responsibility for payment
of any federal or state stock issuance taxes which may be required.
f) TRANSFER RESTRICTIONS. This Warrant, and its underlying shares of common
stock have not been registered under the Act. Accordingly, this Warrant
Agreement, including replacements, shall bear the following legend upon its
face:
TRANSFER RESTRICTION NOTICE.
This Warrant, and the securities issuable upon its exercise (in whole or part)
have not been registered under the Securities Act of 1933, as amended (the Act),
nor the securities laws of any other jurisdiction, and may not be sold,
transferred or otherwise disposed of unless:
i) an appropriate S.E.C. Registration Statement covering the
Warrants and their underlying securities is in effect; or
ii) Company counsel is satisfied that such registration is not
then required and that this Warrant and the underlying
securities may be sold, transferred or otherwise disposed of
in the manner contemplated without registration under the Act.
All Warrants presented for transfer must be accompanied by a duly
executed and completed Form Of Assignment. Prior to the effectiveness of any
future registration statement covering this Warrant Agreement, the Company may
accept or reject such transfer attempt, based upon its counsel's opinion as to
whether or not such an event may take place in the absence of an effective
registration. In case of rejection, the Company shall not have any legal
obligation to effectuate such transfer.
g) ENTIRE BINDING AGREEMENT. This agreement is subject to the agreement dated
October 19, 1999, by and between the Company and the Holder, of which agreement
this agreement is a part.
h) INTERPRETIVE LAW. This Warrant Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado. In the event of a
controversy arising herefrom, it is agreed and consented to that jurisdiction
and venue of the courts of the State of Colorado.
<PAGE> 20
12. Expiration Date.
This Warrant expires at 5.00 P.M. (Eastern Time) on the first anniversary of the
date of execution hereof, to wit, on October 19, 2000. In the event that the
Holder demands registration (paragraph 2 above) of the Warrant and the
underlying shares, this Warrant Agreement shall not terminate until the
expiration of six (6) months from the effective date of such registration, or
upon the exercise hereof, which ever occurs first. The purpose of this provision
is to assure that the Holder does not suffer the loss of the right to exercise
hereunder from a delay in the effectiveness of a registration, for any reason.
IN WITNESS WHEREOF, the Company, by its duly authorized officers has
executed this Warrant on the 19th day of October, 1999.
<PAGE> 1
EXHIBIT 6.10
MERGER AGREEMENT BY AND AMONG
OMICRON TECHNOLOGIES, INC., INTERACTIVE RADIO CORPORATION,
VIASPACE RADIO, INC., VIASPACE TECHNOLOGIES LLC,
GARY NOREEN AND RADIO SATELLITE CORPORATION
<PAGE> 2
EXHIBIT 6.10
--------------------------------
MERGER AGREEMENT
by and among
OMICRON TECHNOLOGIES, INC.,
INTERACTIVE RADIO CORPORATION
VIASPACE RADIO, INC.,
VIASPACE TECHNOLOGIES LLC,
GARY NOREEN
and
RADIO SATELLITE CORPORATION
--------------------------------
September 8, 1999
--------------------------------
<PAGE> 3
MERGER AGREEMENT
This MERGER AGREEMENT dated as of September 8, 1999 (the "Agreement"),
is by and among OMICRON TECHNOLOGIES, INC., a Florida corporation ("Parent") and
INTERACTIVE RADIO CORPORATION, a Nevada corporation and wholly owned subsidiary
of Parent ("Merger Sub"), on the one hand, and VIASPACE RADIO, INC., a
California corporation (the "Company"), VIASPACE TECHNOLOGIES LLC, a Delaware
limited liability company ("ViaSpace"), GARY NOREEN ("Noreen") and RADIO
SATELLITE CORPORATION, a California corporation ("RSC") on the other hand
(collectively ViaSpace, Noreen and RSC are all of the shareholders of the
Company and are collectively referred to as the "Shareholders").
WITNESSETH
WHEREAS, the Company owns certain patents (numbers US5303393,
US5455823 and US5689245) to the Digital Audio Broadcasting technology (the
"INTERACTIVE RADIO Technology");
WHEREAS, Parent is willing to provide $6,000,000 in funding to the
Company to develop and commercially produce the INTERACTIVE RADIO Technology;
WHEREAS, each of the Boards of Directors of Parent, Merger Sub and the
Company has determined that the merger of Company with and into the Merger Sub,
with the Company continuing as the surviving corporation (the "Surviving
Corporation"), upon the terms and subject to the conditions set forth in this
Agreement (the "Merger"), is fair to and in the best interests of its
shareholders, and has approved and adopted this Agreement and the transactions
contemplated hereby;
WHEREAS, pursuant to the Merger, among other things, and subject to the
terms and conditions of this Agreement all of the issued and outstanding shares
of capital stock of the Company shall be converted into the right to receive
shares of the common stock of Parent ("Parent Common Stock");
WHEREAS, as an inducement to Parent and Merger Sub to enter into this
Agreement, certain Shareholders of the Company have agreed to vote the shares of
Company Capital Stock owned by them in favor of the Merger. "Company Capital
Stock" shall include all shares of the Company's common stock ("Company Common
Stock"), no par value, and each share of each series of preferred stock (the
"Company Preferred Stock") of the Company;
WHEREAS, Parent, Merger Sub, the Company and the Shareholders intend
that the Merger shall constitute a reorganization within the meaning of Section
368(a) of the Internal Revenue Code, and in furtherance thereof intend that this
Agreement shall be a "Plan of
1
<PAGE> 4
Reorganization" within the meaning of Sections 354(a) and 361(a) of the
Internal Revenue Code; and
WHEREAS, Parent, Merger Sub, the Company and the Shareholders desire to
make certain representations, warranties, covenants and agreements in connection
with the Merger.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties hereby agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time and subject to and upon the terms
and conditions of this Agreement and the applicable provisions of the Delaware
General Corporation Law (the "Delaware Code") and the California Corporations
Code (the "California Code"), Merger Sub shall be merged with and into the
Company, the separate corporate existence of Merger Sub shall cease, and the
Company shall continue as the surviving corporation and wholly-owned subsidiary
of Parent.
1.2 Effective Time. Unless this Agreement is earlier terminated
pursuant to Section 7.1, the closing of the Merger (the "Closing") will take
place as promptly as practicable, but no later than five (5) Business Days
following satisfaction or waiver of the conditions set forth in Article 6, at
the offices of Brand Farrar & Buxbaum LLP, Los Angeles, California, unless
another place or time is agreed to by Parent and the Company. The date upon
which the Closing actually occurs is herein referred to as the "Closing Date."
On the Closing Date, the parties hereto shall cause the Merger to be consummated
by filing a Certificate of Merger or like instrument (the "Merger Certificate"),
with each of the Secretary of State of the State of Delaware and the Secretary
of State of the State of California, in accordance with the relevant provisions
of applicable law (the time of acceptance by the Secretary of State of the State
of California of such filing, or such later time agreed to by the parties and
set forth in this Agreement, being referred to herein as the "Effective Time").
1.3 Effect of the Merger on Constituent Corporations. At the Effective
Time, the effect of the Merger shall be as provided in the applicable provisions
of the California Code. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the property, rights, privileges,
powers and franchises of Merger Sub and the Company shall vest in the Surviving
Corporation, and all debts, liabilities, obligations, restrictions, disabilities
and duties of Merger Sub and the Company shall become the debts, liabilities,
obligations, restrictions, disabilities and duties of the Surviving Corporation.
1.4 Articles of Incorporation and By-Laws of Surviving Corporation.
(a) At the Effective Time, the articles of incorporation of
the Company, as in effect immediately prior to the Effective Time,
shall be the articles of incorporation of the
2
<PAGE> 5
Surviving Corporation until thereafter amended as provided by law and
such articles of incorporation and by-laws of the Surviving
Corporation.
(b) The by-laws of the Company, as in effect immediately prior
to the Effective Time, shall be the by-laws of the Surviving
Corporation until thereafter amended as provided by such by-laws, the
articles of incorporation and applicable law.
1.5 Directors and Officers of Surviving Corporation. The directors of
Merger Sub immediately prior to the Effective Time shall be the directors of the
Surviving Corporation, each to hold office in accordance with the articles of
incorporation and by-laws of the Surviving Corporation. The officers of Company
immediately prior to the Effective Time shall be the officers of the Surviving
Corporation, each to hold office in accordance with the by-laws of the Surviving
Corporation.
1.6 MAXIMUM NUMBER OF SHARES OF PARENT COMMON STOCK TO BE ISSUED;
EFFECT ON OUTSTANDING SECURITIES OF THE COMPANY. The maximum number of shares of
Parent Common Stock to be issued in exchange for the acquisition by Parent of
all outstanding shares of Company Capital Stock shall be the Aggregate Share
Number, as defined below. On the terms and subject to the conditions of this
Agreement, as of the Effective Time, by virtue of the Merger and without any
action on the part of Parent or Merger Sub, the Company or the holder of any
shares of the Company Capital Stock the following shall occur:
(a) Conversion of Company Capital Stock. At the Effective
Time, each share of Company Capital Stock issued and outstanding
immediately prior to the Effective Time as set forth on Schedule 2.4,
(other than any shares of Company Capital Stock to be canceled pursuant
to Section 1.6(b) and any Dissenting Shares (as provided in Section
1.7)) will be canceled and extinguished and be converted automatically
into the right to receive that number of shares of Parent Common Stock
equal to the Common Stock Exchange Ratio, as defined below, as the case
may be, rounded down to the nearest whole share of Parent Common Stock.
For purposes of this Agreement:
(i) "Aggregate Common Number" means the aggregate
number of shares of Company Common Stock outstanding
immediately prior to the Effective Time (assuming the
conversion immediately prior to the Effective Time of all
outstanding shares of Company Preferred Stock).
(ii) "Aggregate Share Number" means Five Million
(5,000,000) shares of Parent Common Stock (as appropriately
adjusted to reflect the effect of any stock split, stock
dividend, stock combination, reorganization, reclassification
or similar change occurring after the date of this Agreement
and prior to the Effective Time).
(iii) "Common Stock Exchange Ratio" means the
quotient obtained by dividing (x) the Aggregate Share Number
by (y) the Aggregate Common Number.
3
<PAGE> 6
(b) Cancellation of Parent-Owned and Company-Owned Stock. Each
share of Company Capital Stock owned by Parent or the Company or any
Subsidiary of Parent or the Company immediately prior to the Effective
Time shall be automatically canceled and extinguished without any
conversion thereof and without any further action on the part of
Parent, Merger Sub or the Company.
(c) Adjustments to Common Stock Exchange Ratio. The Common
Stock Exchange Ratio shall be equitably adjusted to reflect fully the
effect of any stock split, reverse split, stock combination, stock
dividend (including any dividend or distribution of securities
convertible into Parent Common Stock or Company Capital Stock),
reorganization, reclassification, recapitalization or other like change
with respect to Parent Common Stock or Company Capital Stock occurring
after the date hereof and prior to the Effective Time. "Subsidiary"
means any Person in which the Company or Parent, as the context
requires, directly or indirectly through Subsidiaries or otherwise,
beneficially owns at least 50% of either the equity interest in, or the
voting control of, such Person, whether or not existing on the date
hereof.
(d) Fractional Shares. No fraction of a share of Parent Common
Stock will be issued in the Merger, but in lieu thereof, each holder of
shares of Company Capital Stock who would otherwise be entitled to a
fraction of a share of Parent Common Stock (after aggregating all
fractional shares of Parent Common Stock to be received by such holder)
shall be entitled to receive from Parent an amount of cash (rounded to
the nearest whole cent) equal to the product of (a) such fraction,
multiplied by (b) the Closing Price. "Closing Price" shall mean the
average of the Parent's closing price on the OTC Bulletin Board (or
other national securities exchange on which Parent's Common Stock is
listed) for the 30-day period preceding the Closing.
(e) Capital Stock of Merger Sub. Each share of common stock of
Merger Sub issued and outstanding immediately prior to the Effective
Time shall be converted into and exchanged for one validly issued,
fully paid and nonassessable share of common stock of the Surviving
Corporation. From and after the Effective Time, each share certificate
of Merger Sub theretofore evidencing ownership of any such shares shall
evidence ownership of such shares of capital stock of the Surviving
Corporation.
1.7 DISSENTING SHARES.
(a) Notwithstanding any provision of this Agreement to the
contrary, any shares of Company Capital Stock held by a holder who has
demanded and perfected dissenters' rights for such shares in accordance
with the California Code and who, as of the Effective Time, has not
effectively withdrawn or lost such dissenters' rights ("Dissenting
Shares") shall not be converted into or represent a right to receive
Parent Common Stock pursuant to Section 1.6, but the holder thereof
shall only be entitled to such rights as are granted by the California
Code.
4
<PAGE> 7
(b) Notwithstanding the provisions of Section 1.7(a) above, if
any holder of shares of Company Capital Stock, who demands purchase of
such shares under the California Code, shall effectively withdraw or
lose (through failure to perfect or otherwise) such holder's
dissenters' rights, then, as of the later of (i) the Effective Time or
(ii) the occurrence of such event, such holder's shares shall
automatically be converted into and represent only the right to receive
Parent Common Stock as provided in Section 1.6, without interest
thereon, upon surrender to the Company of the certificate representing
such shares in accordance with Section 1.8 of this Agreement.
(c) The Company shall give Parent (i) prompt notice of its
receipt of any written demands for purchase of any shares of Company
Capital Stock, withdrawals of such demands, and any other instruments
relating to the Merger served pursuant to the California Code and
received by the Company and (ii) the opportunity to participate in all
negotiations and proceedings with respect to demands for purchase of
any shares of Company Capital Stock under the California Code. The
Company shall not, except with the prior written consent of Parent or
as may be required under applicable law, voluntarily make any payment
with respect to any demands for purchase of Company Capital Stock or
offer to settle or settle any such demands.
1.8 EXCHANGE PROCEDURES.
(a) Parent Common Stock. On the Closing Date, Parent shall
deposit with the Parent's transfer agent (the "Exchange Agent") for
exchange in accordance with this Article 1, the Aggregate Share Number
of shares of Parent Common Stock issuable in exchange for outstanding
shares of Company Capital Stock and cash in an amount sufficient to
permit the payment of cash in lieu of fractional shares pursuant to
Section 1.6(d).
(b) Exchange Procedures. At or as soon as practicable after
the Effective Time, each Shareholder shall tender to the Parent any
certificate ("Certificate") representing the Company Capital Stock held
by the record shareholder of the Company (each a "Shareholder"),
accompanied by duly executed letters of transmittal or stock powers, as
required by the Parent. As soon as practicable after the surrender of
such Certificates, the Parent shall cause the Exchange Agent to deliver
to the Shareholder surrendering such Certificate a certificate
representing the number of Shares of Parent Common Stock to which such
Shareholder is entitled pursuant to Section 1.6 and a check payable to
such Shareholder representing the cash to which such Shareholder is to
receive in lieu of fractional shares, if any, and any Certificate so
surrendered shall be cancelled. Until surrendered, each outstanding
Certificate that, prior to the Effective Time, represented shares of
Company Capital Stock will be deemed from and after the Effective Time,
for all corporate purposes, other than the payment of dividends, to
evidence the ownership of the number of full shares of Parent Common
Stock into which such shares
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of Company Capital Stock shall have been so converted and cash in lieu
of fractional shares.
(c) Distributions With Respect to Unexchanged Shares of
Company Capital Stock. No dividends or other distributions with respect
to Parent Common Stock declared or made after the Effective Time and
with a record date after the Effective Time will be paid to the holder
of any unsurrendered Certificate with respect to the shares of Parent
Common Stock represented thereby until the holder of record of such
Certificate shall surrender such Certificate. Subject to applicable
law, following surrender of any such Certificate, there shall be paid
to the record holder of the certificates representing whole shares of
Parent Common Stock issued in exchange therefor, without interest, at
the time of such surrender, the amount of dividends or other
distributions with a record date after the Effective Time theretofore
payable (but for the provisions of this Section 1.8(c)) with respect to
such whole shares of Parent Common Stock.
(d) Transfers of Ownership. If any certificate for shares of
Parent Common Stock is to be issued pursuant to the Merger in a name
other than that in which the Certificate surrendered in exchange
therefor is registered, it will be a condition of the issuance thereof
that the Certificate so surrendered will be properly endorsed and
otherwise in proper form for transfer and that the person requesting
such exchange will have paid to Parent or any agent designated by it
any transfer or other taxes required by reason of the issuance of a
certificate for shares of Parent Common Stock in any name other than
that of the registered holder of the Certificate surrendered, or
established to the satisfaction of Parent or any agent designated by it
that such tax has been paid or is not payable.
1.9 NO FURTHER OWNERSHIP RIGHTS IN COMPANY CAPITAL STOCK. All shares of
Parent Common Stock issued upon the surrender for exchange of shares of Company
Capital Stock in accordance with the terms hereof (including any cash in lieu of
fractional shares) shall be deemed to have been issued in full satisfaction of
all rights pertaining to such shares of Company Capital Stock, and there shall
be no further registration of transfers on the records of the Company of shares
of Company Capital Stock which were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are presented to the
Surviving Corporation for any reason, they shall be canceled and exchanged as
provided in this Article 1.
1.10 Lost, Stolen or Destroyed Certificates. In the event any
Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall
issue certificates representing such shares of Parent Common Stock and cash in
lieu of fractional shares in exchange for such lost, stolen or destroyed
Certificates, upon the making of an affidavit of that fact by the holder
thereof; provided, however, that Parent or the Exchange Agent may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed Certificates to provide an indemnity or
deliver a bond in such sum as it may reasonably direct as
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indemnity against any claim that may be made against Parent or the Exchange
Agent with respect to the Certificates alleged to have been lost, stolen or
destroyed.
1.11 EXEMPTION FROM REGISTRATION; CALIFORNIA PERMIT. The shares of
Parent Common Stock to be issued pursuant to Section 1.6 in connection with the
Merger will be issued in a transaction exempt from registration under the
Securities Act of 1933, as amended (the "Securities Act"), by reason of Section
4(2) of the Securities Act. Subject to the provisions of Section 5.1(c), the
shares of Parent Common Stock to be issued pursuant to Section 1.6 in connection
with the Merger will be exempt or qualified under the California Code, pursuant
to Section 25103(h).
1.12 FURTHER ACTION. If, at any time after the Effective Time, any such
further action is necessary or desirable to carry out the purposes of this
Agreement or to vest the Surviving Corporation with full right, title and
possession to all assets, property, rights, privileges, powers and franchises of
the Company, the officers and directors of the Surviving Corporation are fully
authorized to take, and will take, all such lawful and necessary action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The Company hereby represents and warrants to Parent and Merger Sub as
follows:
2.1 ORGANIZATION, STANDING AND POWER. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California and has all requisite corporate power and authority to own, lease and
operate its Assets and Properties, as defined below, and to carry on its
business as now being conducted. The Company is duly qualified and in good
standing to conduct business in each jurisdiction in which the business it is
conducting makes such qualification necessary.
(a) "Assets and Properties" of any Person means all assets and
properties of every kind, nature, character and description (whether
real, personal or mixed, whether tangible or intangible, whether
absolute, accrued, contingent, fixed or otherwise and wherever
situated), including the goodwill related thereto, operated, owned,
licensed or leased by such Person, including cash, cash equivalents,
Investment Assets, accounts and notes receivable, chattel paper,
documents, instruments, general intangibles, real estate, equipment,
inventory, goods and Intellectual Property.
2.2 AUTHORITY AND ENFORCEABILITY. The Company has all requisite
corporate power and authority to execute and deliver this Agreement and to
perform fully its obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and have
been duly authorized and approved by all necessary corporate action on the part
of the Company. This Agreement has been duly executed and delivered by the
Company and, assuming this Agreement constitutes the valid and binding
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agreement of the other parties hereto, this Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
2.3 SUBSIDIARIES. The Company does not, directly or indirectly, (a) own
or hold beneficially or of record any shares of capital stock, equity interest
or any other security of any other entity or (b) have any other investment in
any other entity.
2.4 CAPITAL STRUCTURE. The authorized Company Capital Stock consists
solely of [5,500,000] authorized shares consisting of (i) [5,000,000] shares of
Common Stock, and (ii) [500,000] shares of 1999 Series A Preferred Stock. As of
the date hereof, there are issued and outstanding [4,500,000] shares of Common
Stock, and [500,000] shares of 1999 Series A Preferred Stock. No other shares of
capital stock of the Company are issued and outstanding. Schedule 2.4 sets forth
a true, correct and complete list, as of the date hereof, of the names of all of
the Shareholders and the respective types and numbers of Company Capital Stock
held by each Shareholder. All outstanding shares of Company Capital Stock have
been validly authorized and issued and are fully paid, non-assessable and free
of preemptive or similar rights.
2.5 TITLE TO INTERACTIVE RADIO TECHNOLOGY.
(a) Title. Except as set forth on Schedule 2.11 (i) the
Company owns beneficially and of record, and has good and marketable
title to, the Interactive Radio Technology, free and clear of any
Encumbrances (as defined below) and (ii) upon consummation of the
transactions contemplated at the Closing, the Company will still have
good and marketable title to the Interactive Radio Technology, free and
clear of any Encumbrance.
(b) Definition of Encumbrance. For purposes of this Agreement,
the term "Encumbrance" shall mean and include any mortgage, pledge,
claim, charge, lien, encumbrance, interest, option, right of first
refusal, restriction, condition, violation, security interest or
assessment of any nature affecting in any way the assets or property
involved; provided that the term "Encumbrance" shall not include any
restrictions imposed pursuant to the express provisions of any statute
or governmental regulation.
2.6 NO VIOLATIONS RESULTING FROM TRANSACTIONS. Except as set forth in
Schedule 2.6 attached hereto, the execution and delivery by the Company of this
Agreement, and the consummation of the transactions contemplated hereby and
thereby by the Company will not (a) conflict with or violate any provision of
the certificate of incorporation or bylaws, or other similar document, of the
Company, as amended through the date hereof, (b) require any consent, waiver,
approval, authorization or permit of, or filing with or notification to, any
Governmental Entity (as defined below), (c) result in or constitute a Default
(as defined in Section 2.13(b)), or
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require any consent or approval of or notice to any Person, or result in the
creation of Encumbrance, under or pursuant to any material agreement to which
the Company is a party or by which it or any of its Assets may be bound, or (d)
violate any Law (as defined below) applicable to the Company or the Shareholders
by which any of them may be bound. For purposes of this Agreement, (i) the term
"Governmental Entity" shall mean any federal or state governmental authority,
court, administrative agency or commission or other governmental or regulatory
body or entity, and (ii) the term "Law" shall mean any statute, law, ordinance,
rule, regulation or administrative ruling or any governmental permit, franchise
or license or any injunction, judgment, order or consent or similar decree or
agreement, whether federal, state, local or foreign.
2.7 COMPLIANCE WITH LAWS. The Company is, and at all times has been, in
material compliance with all Laws applicable to the Company, or to the conduct
of the business or operations of the Company, the use of their properties and
assets, and (b) the Company has not received, and does not know of the issuance
or threatened issuance by any Governmental Entity, of any notices of violation
or alleged violation of any Law applicable to the Company, provided that the
representations and warranties set forth in this sentence with respect to
compliance with foreign laws are being made to the knowledge of the Company.
2.8 LITIGATION. There is no action, suit, claim, investigation or
proceedings whether at law or in equity (each, a "Legal Proceeding"), pending
or, to the knowledge of the Company, threatened that questions the validity of
this Agreement or any action taken or to be taken by the Company or in
connection with the consummation of the transactions contemplated hereby.
2.9 TAXES.
(a) Payment of Taxes; Tax Returns. All Taxes, as defined
below, with respect to any periods ending on or before the Closing Date
which are due and payable (whether or not shown on any Tax Return, as
defined below) by the Company have been paid in full and no such Taxes
remain outstanding.
(b) Defined Terms. For purposes of this Agreement, (i) "Code"
shall mean both the Internal Revenue Code of 1986, as amended and any
successor internal revenue law and the rules and regulations
promulgated thereunder, and any reference to a specific provision of
the Code shall include any predecessor of such provision; (ii) "Taxes"
shall mean (A) all taxes, charges, fees, levies, or other similar
assessments, including without limitation, income, gross receipts, ad
valorem, premium, excise, real property, personal property, windfall
profit, sales, use, transfer, licensing, withholding, employment,
payroll, estimated and franchise taxes imposed by the United States,
any state, local, or foreign government, or any subdivision, agency, or
other similar entity of the United States, or any such government, and
any interest, fines, penalties, assessments, or additions to tax
resulting from, attributable to, or incurred in connection with any
such tax or any contest or dispute thereof, and (B) any Taxes (as
defined in clause (A)) for
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which the Company is liable as a transferee, indemnitor, guarantor,
surety or in a similar capacity under any contract, arrangement,
understanding or commitment, whether oral or written, or by reason of
having been a member of any affiliated, consolidated, combined or
unitary group; (iii) "Tax Returns" shall mean any report, return,
statement, or other information required to be supplied to a federal,
state, local or foreign taxing authority in connection with Taxes; and
(iv) any reference to the Company shall include any corporation which
merged with or into or was liquidated into the Company or a subsidiary
of the Company or otherwise is a predecessor of the Company or such
subsidiary.
2.10 NO UNDISCLOSED LIABILITIES. Except as set forth on Schedule 2.10
attached hereto, the Company has not had any indebtedness, obligations or
liabilities of any kind (whether accrued, absolute, contingent or otherwise, and
whether due or to become due or asserted or unasserted), and, to the knowledge
of the Company, there was no basis for the assertion of any claim or liability
of any nature against the Company.
2.11 INTELLECTUAL PROPERTY
(a) List of Intellectual Property; Sufficiency. Schedule 2.11
sets forth a true, correct and complete list of all Intellectual
Property (as defined below in paragraph (d)) which is either owned by
the Company, licensed by the Company or otherwise used in its business
and indicates, with respect to each item of Intellectual Property
listed thereon, the owner thereof and, if applicable, the name of the
licensor and licensee thereof and the date(s) of any licenses or other
agreements or contracts with respect thereto.
(b) Title; Validity. Except as set forth in Schedule 2.11:
(i) The Company has full legal and beneficial
ownership (free and clear of any and all Encumbrances) of, or
a valid right to use (free of any material restriction not
entered into in the ordinary course of business), all
Intellectual Property necessary for the conduct of its
business, and the Company has not received any notice or claim
(whether written, oral or otherwise) challenging the Company's
ownership or rights in such Intellectual Property or
suggesting that any other Person (except, under certain
circumstances, the licensor thereof) has any claim of legal or
beneficial ownership with respect thereto. A "Person" means
any natural person, corporation, general partnership, limited
partnership, limited liability company or partnership,
proprietorship, other business organization, trust, union,
association or governmental or regulatory authority; and
(ii) All Intellectual Property of the Company is
legally valid and enforceable without any material
qualification, limitation or restriction on its use, and the
Company has not, directly or indirectly through any of its
Affiliates, as defined in Section 2.11(e) below, or
representatives, received any notice or claim
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(whether written, oral or otherwise) challenging the validity
or enforceability of any such Intellectual Property, provided
that, with respect to any patents, such representation is being
made only to the knowledge of the Company.
(c) The Company has not conducted its business, and has not
used or enforced (or failed to use or enforce) any Intellectual
Property, in a manner that would result in the abandonment,
cancellation or unenforceability of any item of the Intellectual
Property listed in Schedule 2.11, and the Company has not taken or
failed to take any action that would result in the forfeiture or
relinquishment of any Intellectual Property used in the conduct of its
business as now conducted.
(d) Definition of "Intellectual Property". For purposes of
this Agreement, the term "Intellectual Property" means any patent,
copyright, trademark, trade name, service mark, logo, Internet domain
name or industrial design, any registrations thereof and pending
applications therefor (to the extent applicable), any other
intellectual property right (including, without limitation, any
invention, know-how, trade secret, formula, algorithm, process,
confidential or proprietary report or information, customer list or
membership list, any computer program, software, source code, object
code, database or data right, and any system, user, programmer,
maintenance, installation or other form of documentation or other
material related thereto), any license or other contract relating to
any of the foregoing, and any goodwill associated with any business
owning, holding or using any of the foregoing.
(e) "Affiliate" means, as applied to any Person, (a) any other
Person directly or indirectly controlling, controlled by or under
common control with, that Person, (b) any other Person that owns or
controls (i) 10% or more of any class of equity securities of that
Person or any of its Affiliates or (ii) 10% or more of any class of
equity securities (including any equity securities issuable upon the
exercise of any option or convertible security) of that Person or any
of its Affiliates, or (c) any director, partner, officer, manager,
agent, employee or relative of such Person. For the purposes of this
definition, "control" (including with correlative meanings, the terms
"controlling", "controlled by", and "under common control with") as
applied to any Person, means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of that Person, whether through ownership of voting securities
or by contract or otherwise.
2.12 REAL PROPERTY. The Company does not own or have the right to
acquire, pursuant to any agreement, arrangement or understanding, any real
property.
2.13 MATERIAL CONTRACTS
(a) List of Material Contracts. Schedule 2.13 attached hereto
sets forth a true, correct and complete list (including the title, the
date, the parties and a list of any amendments, modifications or
supplements thereto) of all material agreements and other
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contracts to which the Company is a party or by which it or its Assets
may be bound ("Contracts").
(b) Enforceability; Defaults; Consents; Impending
Terminations; Etc. Except as set forth in Schedule 2.13:
(i) No Default, as defined below, exists under any
Contract either by the Company or, to the knowledge of the
Company, by any other party thereto;
(ii) The Company is not aware of the assertion by any
third party of any claim of Default or breach under any
Contract.
For purposes of this Agreement, the term "Default" means, with respect
to any Contract, (x) any material breach of or default under such Contract, (y)
any event which could (either with or without notice or lapse of time or both)
give rise to any right of termination, cancellation or acceleration or any
obligation to repay with respect to such Contract, or (z) any event which could
result in either a material increase in the obligations or liabilities of, or a
loss of any material benefit to which, the party in question or any of its
affiliates may be entitled or subject to under such Contract.
2.14 NO MISREPRESENTATION. Neither this Agreement (including the
Schedules hereto) or any information supplied to Parent by or on behalf of the
Company in connection with this Agreement or the transactions contemplated
hereby contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary to make the statements contained
herein or therein, in light of the circumstances under which they were made, not
misleading.
ARTICLE III
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF THE SHAREHOLDERS
3.1 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. The
Shareholders hereby severally but not jointly represent and warrant as to
himself, herself or itself to, and covenant and agree with, Parent and Merger
Sub as follows:
(a) Each Shareholder has all requisite legal right, power and
authority to enter into this Agreement and all other agreements
required of them as a result of the terms and conditions of this
agreement (the "Related Agreements") to which he, she or it is a party
and to agree to the transactions contemplated hereby and thereby, and
to perform all of his, her or its obligations hereunder and thereunder.
(b) This Agreement has been duly executed and delivered by
such Shareholder and, assuming this Agreement constitutes the valid and
binding agreement of the other parties hereto, this Agreement
constitutes the legal, valid and binding
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obligations of such Shareholder, enforceable against such Shareholder
in accordance with its respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and
remedies generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(c) The execution and delivery by each Shareholder of this
Agreement and the consummation of the transactions contemplated hereby
by such Shareholder, will not (i) require any consent, waiver,
approval, authorization or permit of, or filing with or notification
to, any Governmental Entity, as defined in Section 2.6, (ii) result in
or constitute a Default, as defined in Section 2.13(b), or require any
consent or approval of or notice to any Person, or result in the
creation of an Encumbrance, under or pursuant to any other material
contract or agreement to which such Shareholder is a party or by which
it or any of its assets may be bound, or (iii) violate any Law
applicable to such Shareholder or by which any of its may be bound.
(d) Each Shareholder owns beneficially and of record, and has
good and marketable title to, the number of shares of Company Capital
Stock set forth opposite the name of such Shareholder in Schedule 2.4,
free and clear of any Encumbrance, as defined in Section 2.5(b). During
the period commencing on the date hereof and ending on the Closing
Date, such Shareholder shall retain both record and beneficial
ownership of all such shares of Company Capital Stock held by him, her
or it, free and clear of any Encumbrance, and will not transfer any of
such shares of Company Capital Stock to any party or other Person or
otherwise grant any Encumbrance with respect to such shares of Company
Capital Stock; provided, however, that any Shareholder shall be
entitled to freely transfer any shares of Company Capital Stock owned
by it to any of its shareholders, members or affiliates if the
transferee agrees to be bound by the terms of this Agreement.
(e) The shares of Parent Common Stock to be acquired by each
Shareholder in the Merger are being acquired for such Shareholder's own
account for investment purposes and not with a view to, or for resale
in connection with, any distribution of such shares meaning of the
Securities Act or any applicable state securities or "blue sky" laws.
(f) Each Shareholder understands that the shares of Parent
Common Stock to be issued to such Shareholder in the Merger will not be
registered under the Securities Act or qualified under any state
securities or "blue sky" laws, and such shares may not be sold or
otherwise disposed of except in compliance with the Securities Act or
in reliance upon an exemption therefrom; provided, however, that
subject to the foregoing, any Shareholder shall be entitled to freely
transfer any shares of Parent Common Stock owned by it to any of its
shareholders, members or affiliates.
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(g) Each Shareholder understands that Parent is relying to a
substantial extent on the representations warranties and covenants of
such Shareholder as provided in this Agreement and authorizes Parent to
act as it may see fit in full reliance thereon, including, without
limitation, placing the following or a similar legend on and stop order
against the shares of Parent Common Stock to be acquired by such
Shareholder in the Merger:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR QUALIFIED
UNDER ANY STATE SECURITIES LAWS AND MAY BE OFFERED AND SOLD
ONLY IF REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS OR AN
EXEMPTION IS AVAILABLE THEREFROM.
(h) Each Shareholder has such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of the prospective investment in the shares of Parent
Common Stock, and is able to bear the economic consequences thereof for
an indefinite period of time.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MERGER SUB AND PARENT
Merger Sub and Parent hereby jointly and severally represent and
warrant to the Company and the Shareholders as follows:
4.1 ORGANIZATION, STANDING AND POWER. Each of Merger Sub and Parent is
duly organized, validly existing and in good standing under the laws of its
state of incorporation or organization and has all requisite corporate power and
authority to own, lease and operate its Assets and Properties, as defined in
Section 2.1(a), and to carry on its business as now being conducted. Each of
Merger Sub and Parent is duly qualified and in good standing to conduct business
in each jurisdiction in which the business it is conducting, or the operation,
ownership or leasing of its properties, makes such qualification necessary.
4.2 Authority. Each of Merger Sub and Parent has all requisite power
and authority to execute and deliver this Agreement and to perform fully its
obligations hereunder and thereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of each of Merger Sub
and Parent. This Agreement has been duly executed and delivered by each of
Merger Sub and Parent and, assuming this Agreement constitutes the valid and
binding agreement of the other parties hereto and thereto, this Agreement
constitutes the legal, valid and binding obligations of each of Merger Sub and
Parent, enforceable against each of Merger Sub and Parent in accordance with its
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors'
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rights and remedies generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
4.3 CAPITAL STRUCTURE. As of the date hereof, the authorized capital
stock of Parent consists of (a) 50,000,000 shares of Parent Common Stock (of
which 24,170,000 shares were issued and outstanding and 25,830,000 shares were
held in treasury, and (b) There are no shares of preferred stock issued or
outstanding. All outstanding shares of Parent Common Stock are validly issued,
fully paid and non-assessable and are not subject to preemptive or other similar
rights.
4.4 ISSUANCE OF SHARES BY PARENT. Prior to the Closing, Parent and
Merger Sub will have taken all necessary action to permit Parent to issue the
number of shares of Parent Common Stock required to be issued by it pursuant to
Section 1.6 and to those Shareholders on Schedule 2.4. All shares of Parent
Common Stock to be issued by Parent pursuant to Schedule 1.7 will, at the time
of issuance, be validly issued, fully paid and nonassessable, and no Person will
have any preemptive right of subscription or purchase in respect thereof; in
addition, such shares will be issued free and clear of any Encumbrances (except
pursuant to applicable securities or "blue sky" laws).
4.5 NO VIOLATIONS RESULTING FROM TRANSACTIONS. The execution and
delivery by Merger Sub and Parent of this Agreement and the consummation of the
transactions contemplated hereby by each of Merger Sub and Parent will not (a)
conflict with or violate any provision of the articles of incorporation or
bylaws of Parent or the articles of incorporation or bylaws of Merger Sub, (b)
require any consent, waiver, approval, authorization or permit of, or filing
with or notification to, any Governmental Entity, (c) result in or constitute a
Default, or require any consent or approval of or notice to any Person, or
result in the creation of an Encumbrance, under or pursuant to any material
agreement to which Merger Sub or Parent is a party or by which any of their
respective assets are bound, or (d) violate any Law applicable to Merger Sub or
Parent or by which any of their respective assets are bound.
4.6 LITIGATION. There is no suit, claim, action, proceeding or
investigation (collectively, "Claims") pending or, to the knowledge of the
Merger Sub or Parent, threatened against Merger Sub or Parent or any of their
properties, including without limitation, any Claim which, individually or in
the aggregate, questions the validity of this Agreement or any action to be
taken by Merger Sub or Parent in connection with the consummation of the
transactions contemplated hereby or could otherwise prevent or delay the
consummation of the transactions contemplated by this Agreement.
4.7 NO PRIOR ACTIVITIES. Except for obligations incurred in connection
with its incorporation or organization or the negotiation of this Agreement or
the consummation of the transactions contemplated hereby, Merger Sub has neither
incurred any obligation or liability nor engaged in any business or activity of
any type or kind whatsoever or entered into any agreement or arrangement with
any Person.
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4.8 INVESTMENT ADVISORS. No broker, investment banker, financial
advisor or other Person is entitled to any broker's, finder's, financial
advisor's or similar fee or commission in connection with this Agreement and the
transactions contemplated hereby based on arrangements made by or on behalf of
Parent.
4.9 TAX-FREE ORGANIZATION
(a) Prior to the Closing, all of the shares of capital stock
of the Merger Sub are owned by the Parent.
(b) Except as provided herein, Parent has no current plan or
intention to (i) reacquire any of the Parent Common Stock issued in
connection with the transactions contemplated by this Agreement; (ii)
liquidate the Surviving Corporation; (iii) merge the Surviving
Corporation with or into another entity; (iv) sell or otherwise dispose
of its assets following the Close, except in the ordinary course of
business; or (vi) cause the Surviving Corporation to issue any
additional stock or securities.
(c) Parent has never owned any Company Capital Stock.
(d) Neither Parent nor Merger Sub is an investment company
subject to regulation under the Investment Company Act of 1940.
4.10 DISCLOSURE. No representation or warranty contained in this
Agreement, and no statement contained in any schedule or in any certificate,
list or other writing furnished to the Company or any Shareholder pursuant to
any provision of this Agreement contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
herein or therein, in the light of the circumstances under which they were made,
not misleading.
ARTICLE V
COVENANTS OF PARENT AND MERGER SUB
5.1 ADDITIONAL AGREEMENTS. Each of the parties agrees to use its
respective best efforts to (a) take, or cause to be taken, all appropriate
action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement, (b) obtain all licenses,
permits, consents, approvals, authorizations, qualifications and orders of
Governmental Entities and parties to contracts with the Company as are necessary
for consummation of the transactions contemplated by this Agreement, and (c)
fulfill all conditions precedent applicable to such party or its representatives
pursuant to this Agreement. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this Agreement,
each party shall use its respective commercially reasonable efforts to take or
cause to be taken all such necessary action.
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5.2 PUBLICITY. On or prior to the Closing Date, Parent, Merger Sub, the
Company and the Shareholders will consult with each other and will mutually
agree upon any press release or public announcement pertaining to this Agreement
and shall not issue any such press release or make any such public announcement
prior to such consultation and agreement.
5.3 NOTIFICATION OF CERTAIN MATTERS. Parent and the Merger Sub, shall
give prompt notice to the Company of (a) any notice or other communication from
any third party alleging that the consent of such third party is or may be
required in connection with the transactions contemplated by this Agreement, or
(b) any material Legal Proceeding, a defined in Section 2.8, commenced by or
against Parent or Merger Sub or any Legal Proceeding commenced or threatened
against Parent or Merger Sub relating to the transactions contemplated by this
Agreement.
5.4 DIRECTORS' AND OFFICERS' INDEMNIFICATION
(a) Parent agrees that all indemnification now existing in
favor of the directors and officers of the Company as of the date
hereof as provided in the charter and bylaws of the Company and in any
indemnification agreements existing between any such director or
officer and the Company on the date hereof shall continue in full force
and effect to the extent provided in such organizational or other
document, provided that Parent shall not be obligated to indemnify such
directors or officers for any actions taken or decisions made in
violation or contravention of this Agreement or in connection with any
matter or circumstance the existence or occurrence of which constitutes
a breach of the representations, warranties, covenants or agreements of
the Company or the Shareholders in this Agreement.
5.5 SEC REGISTRATION. No later than January 31, 2000, Parent agrees to
cause a registration statement under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), with respect to the Parent Common Stock to be declared
effective by the SEC. With a view to making available to the Shareholders the
benefits of Rule 144 promulgated under the Securities Act ("SEC Rule 144") and
any other rule or regulation of the Securities and Exchange Commission or its
successor (the "SEC") that may at any time permit a Shareholder to sell Parent
Common Stock to the public without registration, commencing with such 1934 Act
registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934
Act; and
(c) furnish to any Shareholder, so long as the Shareholder
owns any Parent Common Stock, forthwith upon request (i) a written
statement by the Company that it has complied with the reporting
requirements of SEC Rule 144 (at any time after ninety (90)
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<PAGE> 20
days after the effective date of the first registration statement filed
by the Company), the Securities Act and the 1934 Act and (ii) such
other information as may be reasonably requested in availing any
Shareholder of any rule or regulation of the SEC which permits the
selling of any such securities without registration.
5.6 REGISTRATION OF PARENT COMMON STOCK. If Parent shall fail to comply
with the provisions of Section 5.5, any Shareholder shall have the right to
require Parent to prepare and file with the SEC within 30 days following a
request by such Shareholder, a registration statement on Form S-1 (or any
successor form or, in Parent's sole discretion, on any other appropriate form
under the Securities Act, as may then be available to Parent which allows for
the continuous offering of securities) (such registration statement, the
"Registration Statement") relating to the resale of the Registrable Shares (as
defined below), (y) Parent shall cause the Registration Statement to be declared
effective by the SEC as soon as reasonably practicable after the filing of such
Registration Statement, and (z) Parent shall maintain the effectiveness of such
Registration Statement (and maintain the current status of the prospectus or
prospectuses contained therein) until all of the Parent Common Shares held by
such Shareholder shall have been sold. Parent shall pay all registration,
qualification and filing fees, all fees and expenses of legal counsel,
accountants and other persons retained by Parent, and all other expenses
incurred by Parent in connection with Parent's performance of or compliance with
the provisions of this Section (excluding, without limitation, underwriting
discounts, selling commissions and transfer taxes applicable to the sale of
Registrable Shares but including the cost of any separate legal counsel or other
advisors retained by any Shareholder). The term "Registrable Shares" shall mean,
collectively, the shares of Parent Common Stock issued to the Shareholders of
Company Shares in the Merger pursuant to Section 1.6; provided that such term
shall not include any shares of Parent Common Stock that (x) have been
registered under the Securities Act, (y) have been sold or otherwise transferred
by any Holder or (z) have ceased to be outstanding.
5.7 PIGGYBACK REGISTRATION RIGHTS. If Parent grants piggyback
registration rights with respect to any Parent Common Stock to
any stockholder of Parent at any time during the two (2) year
period following the Closing Date, Parent shall grant
piggyback registration rights to the Shareholders on a pari
passu basis.
5.8 PUBLIC TRADING OF THE SURVIVING CORPORATION'S SHARES. No later
than October 1st 2001, Parent agrees to consummate the sale of
the Surviving Corporation's common stock in a bona fide
underwriting pursuant to a registration statement on Form S-1
or SB-2 under the Securities Act, which results in gross
proceeds to the Surviving Corporation of at least $6,000,000
and a simultaneous registration of the Surviving Corporation's
common stock with the SEC under the 1934 Act and listing of
the Surviving Corporation's common stock on a national
securities exchange (such registrations and listings referred
to as the "IPO"). In the event Parent does not complete such
IPO within such time period, the Shareholders holding greater
than 50% of the original Aggregate Share Number shall be
entitled to require Parent to distribute to all the
Shareholders shares of the
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<PAGE> 21
Surviving Corporation representing 100% of the issued and
outstanding shares of Surviving Corporation in the manner set
forth in Section 5.8 above.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 CONDITIONS TO OBLIGATIONS OF ALL PARTIES. The respective
obligations of each party to effect the Merger shall be subject to the
satisfaction at or prior to the Effective Time of the following conditions.
(a) Governmental Approvals. All authorizations, consents,
orders or approvals of, or declarations or filings with, or expirations
of waiting periods imposed by, any Governmental Entity, requisite to
the transactions contemplated hereby, shall have been filed, occurred
or been obtained, as the case may be.
(b) Contractual Consents. The Company shall have given all
notices to, and obtained all consents, approvals or authorizations of
or from, any Person which may be necessary to permit the consummation
of the transactions contemplated hereby (including, without limitation,
any consents required under contracts and agreements to which the
Company or any Shareholder is a party or by which the Company, any
Shareholder or any of their assets may be bound, or which may be
required to permit the change of ownership of the Company).
(c) No Injunctions or Restraints. No temporary restraining
order, preliminary or permanent injunction or other order issued by any
court of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the transactions contemplated by this
Agreement shall be in effect; provided that prior to invoking this
condition, each party shall use all commercially reasonable efforts to
have any such order, injunction, legal restraint or prohibition
vacated.
6.2 CONDITIONS OF OBLIGATIONS OF MERGER SUB AND PARENT. The respective
obligations of Merger Sub and Parent to effect the Merger are subject to the
satisfaction at or prior to the Effective Time of the following conditions
(which are for the exclusive benefit of Merger Sub and Parent), any or all of
which may be waived in whole or in part by Merger Sub or Parent in its sole
discretion:
(a) Representations and Warranties. The representations and
warranties of the Company and the Shareholders set forth in this
Agreement shall be true and correct in all material respects as of the
date of this Agreement, and shall be true and correct in all material
respects at and as of the Effective Time, as though made at and as of
the Effective Time, and the Company shall produce at or prior to the
Effective Time a certificate, signed by the president of the Company,
certifying to such effect.
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<PAGE> 22
(b) Performance of Obligations. Each of the Company and the
Shareholders shall have performed in all material respects at or prior
to the Effective Time all obligations required to be performed by each
such party at or prior to the Effective Time, and the Parent shall have
received at or prior to Closing a certificate, signed by the president
of the Company, certifying to such effect.
(c) No Material Adverse Change. Since the date of this
Agreement, there shall have been no event, change, occurrence or
circumstance having, or which could reasonably be expected to have,
individually or in the aggregate, Material Adverse Effect, and the
Company shall have produced a certificate, signed by the president of
the Company, certifying to such effect. A "Material Adverse Change" is
an event, change, occurrence or circumstance having, or which could
reasonably be expected to have, individually or in the aggregate, a
material adverse change in, or material adverse effect on, the
business, assets, prospects, results of operations or financial or
other condition of the Company or (ii) any event or circumstance that
is or would reasonably be likely to prevent, hinder or materially delay
the consummation of any of the transactions contemplated by this
Agreement.
(d) Other Documents. The Company shall have delivered such
other documents as Parent and Merger Sub may reasonably request.
6.3 CONDITIONS OF OBLIGATIONS OF THE COMPANY AND THE SHAREHOLDERS. The
respective obligations of the Company and the Shareholders to effect the Merger
are subject to the satisfaction at or prior to the Effective Time of the
following conditions (which are for the exclusive benefit of the Company and the
Shareholder), any or all of which may be waived in whole or in part by the
Company and the Shareholders:
(a) Representations and Warranties. The representations and
warranties of Parent and the Merger Sub, as set forth in this Agreement
shall be true and correct in all material respects as of the date of
this Agreement, and shall be true and correct in all material respects
at and as of the Effective Time, as though made at and as of the
Effective Time, and the Company shall have received at or prior to the
Effective Time a certificate, signed by a senior executive officer of
Parent and the Merger Sub, each certifying to such effect.
(b) Performance of Obligations. Parent and the Merger Sub
shall have performed in all material respects at or prior to the
Effective Time all obligations required to be performed by each such
party at or prior to the Effective Time, and the Company shall have
received at or prior to Closing a certificate of Parent and the Merger
Sub, signed by a senior executive officer of Parent and Merger Sub,
certifying to such effect.
(c) No Change in Parent and the Merger Sub. Except as
otherwise expressly contemplated or permitted by this Agreement or
authorized in writing by the Company
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and the Shareholders prior thereto, neither Parent nor Merger Sub shall
have taken any of the following actions or none of the following shall
have occurred:
(i) conduct the business of Parent or Merger in a
manner inconsistent with past practice;
(ii) (x) declare, authorize, set aside, pay or
distribute any dividend or other distribution, nor grant any
option, warrant, call or right (including preemptive rights),
(y) issue, transfer, dispose, sell, purchase, redeem or
otherwise acquire any shares of capital stock of either Parent
or Merger Sub or any of their securities or rights convertible
into, exchangeable for, or evidencing the right to subscribe
for, any shares of capital stock or other securities of, or
other ownership interests in, the Parent or Merger Sub,
provided that the Parent may purchase shares of Parent Common
Stock upon the termination of an employee if the Parent is
expressly authorized to do so pursuant to a prior written
agreement, or (z) enter into any agreement of any character
requiring the Parent to take any of the actions in (x) and (y)
above;
(iii) effect any recapitalization, reclassification
or similar change in the capitalization of the Company;
(iv) amend their respective articles of incorporation
or bylaws;
(v) fail to comply with all Laws and to comply with
all contractual and other obligations applicable to Parent or
Merger Sub;
(vi) incur any indebtedness for borrowed money, not
issue any bond, debenture or promissory note and, except for
trade payables and any other liabilities or obligations
incurred in the ordinary course of business (consistent with
past practice), not create, incur, acquire, assume, guarantee
or become subject to, or agree to incur or become subject to,
any other obligation or liability (contingent or otherwise);
(vii) acquire any material properties or assets and
not sell, assign, transfer, convey, lease or otherwise dispose
of any of the material properties or assets (except for fair
consideration in the ordinary course of business consistent
with past practice) of Parent, Merger Sub or the Company;
(viii) fail to do, or agree to do anything prohibited
by, Articles V or VI of this Agreement or anything which would
make any of the representations and warranties made to the
Company or the Shareholders in this Agreement untrue or
incorrect in any material respect;
(ix) any other Material Adverse Change in Parent or
Merger Sub; and
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(x) agree to take any action which would be
prohibited by this Section.
(d) Release. Parent shall have signed a release agreement in a
form acceptable to ViaSpace, releasing ViaSpace from any obligation
under, and from any and all liability as a result of that Memorandum of
Understanding signed by and between ViaSpace and Parent, dated August
7, 1998, and as amended.
(e) Private Placement. The Shareholders shall be reasonably
satisfied that the shares of Parent Common Stock to be issued in
connection with the Merger pursuant to Section 1.6(a) are issuable
without registration pursuant to Section 4(2) of the Securities Act.
(f) Tax-Free Reorganization. The Merger will constitute a
tax-free reorganization within the meaning of Section 368(a) of the
Code.
(g) Employment Agreements. Each of Carl Kukkonen, Gary Noreen,
and Amjad Abdallat shall have entered into employment agreements from
the Surviving Corporation and shall have been granted such number of
qualified incentive stock options to purchase Parent Common Stock in
each case satisfactory to each of them in their sole discretion.
(h) Other Documents. Parent and Merger Sub shall have
delivered such other documents as the Company or the Shareholders may
reasonably request.
ARTICLE VII
TERMINATION AND AMENDMENT
7.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing:
(a) by mutual written consent of the Company, on behalf of
itself and the Shareholders, and Parent, on behalf of itself and Merger
Sub;
(b) by (i) either (A) the Company, if there has been a
material breach of any representation, warranty, covenant or agreement
on the part of Parent or Merger Sub, which breach has not been cured
within two (2) business days following receipt by Parent of written
notice of such breach, or (B) Parent, if there has been a material
breach of any representation, warranty, covenant or agreement on the
part of the Company or any Shareholder, as the case may be, which
breach has not been cured within two (2) business days following
receipt by the breaching party of written notice of such breach, or
(ii) either the Company or Parent, if any permanent injunction or other
order of a court or other competent authority preventing the
consummation of the transactions contemplated by this Agreement shall
have become final and non-appealable; or
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(c) by either the Company or Parent, if the Closing shall not
have occurred on or before September 13th 1999; provided that the right
to terminate this Agreement under this Section 7.1(c) shall not be
available to (A) Parent, if such party has breached any of its
representations, warranties or covenants hereunder in any material
respect and such breach has been the cause of or resulted in the
failure of the Closing to occur on or before such date or (B) the
Company, if either the Company or any Shareholder has breached any of
his, her or its respective representations, warranties or covenants
hereunder in any material respect and such breach has been the cause of
or resulted in the failure of the Closing to occur on or before such
date.
7.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either the Company or Parent as provided in Section 7.1, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of any party or any of their respective Affiliates,
officers, directors, shareholders or representatives, except (a) with respect to
Section 9.8, and (b) to the extent that such termination results from any
intentional or knowing breach by any party of any of its representations or
warranties, or of any of its covenants or agreements, in each case as set forth
in this Agreement.
7.3 AMENDMENT. Subject to applicable Law, this Agreement may be
amended, modified or supplemented only by written agreement signed by the
Company, on behalf of itself and the Shareholders, and Parent, on behalf of
itself and Merger Sub, at any time prior to the Closing Date with respect to any
of the terms contained herein, and each party agrees to be bound by any such
amendment, modification or supplement.
7.4 EXTENSION; WAIVER. At any time prior to the Closing Date, the
Company (on behalf of itself and the Shareholders), on the one hand, and Parent
(on behalf of itself and Merger Sub), on the other hand, may: (a) extend the
time for the performance of any of the obligations or other acts of the other
parties; (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto; and (c) waive
compliance with any of the agreements or conditions contained herein. Any
agreement to any such extension or waiver shall be valid only if set forth in a
written instrument signed by the Company (on behalf of itself and the
Shareholders), or by Parent (on behalf of itself and Merger Sub), as the case
may be. The failure of any party to assert any of its rights hereunder shall not
constitute a waiver of such rights.
ARTICLE VIII
SURVIVAL; INDEMNIFICATION
8.1 GENERAL SURVIVAL. The parties agree that, regardless of any
investigation made by the parties, (a) the representations and warranties of the
parties contained in this Agreement shall survive the execution and delivery of
this Agreement for a period beginning on the date hereof and ending on the
second anniversary of the Closing Date and (b) each covenant and agreement set
forth in this Agreement which, by its terms, is to be performed after the
Closing
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Date shall survive the execution and delivery of this Agreement and shall
continue until the expiration of the applicable statute of limitations period,
unless otherwise expressly provided for herein (all of the time periods set
forth above, collectively referred to as the "Survival Period"). Notwithstanding
anything to the contrary contained herein, (i) no claim, suit or proceeding for
breach of any representation or warranty of any party set forth in this
Agreement may be brought by any party unless written notice of such claim shall
have been given on or prior to the last day of the applicable Survival Period
(in which event each such representation or warranty shall, with respect to the
specific claim made, survive the applicable Survival Period until such claim is
finally resolved and all obligations with respect thereto are fully satisfied)
and (ii) nothing contained in this Agreement or otherwise shall in any way limit
any claim, suit, cause or action or remedy that may be available to Parent or
any other Indemnitee (as defined below) based on fraud.
8.2 INDEMNIFICATION.
(a) Indemnification by Parent and Merger Sub. Subject to the
provisions of Section 8.1, the Parent and Merger Sub shall jointly and
severally indemnify and hold harmless the Company, the Shareholders and
each their respective Affiliates, officers, directors, stockholders,
representatives and agents (collectively, the "Company Indemnitees")
from and against and in respect of any and all Losses (as defined
below) incurred by, resulting from, arising out of, relating to,
imposed upon or incurred by the Shareholders or any other Company
Indemnitee by reason of:
(i) any inaccuracy in or breach of any of the
Parent's or Merger Sub's representations, warranties,
covenants or agreements contained in this Agreement;
(ii) any misrepresentation contained in any statement
or certificate furnished to the Company, Shareholders or any
other Indemnitee by or on behalf of the Parent in connection
with the transactions contemplated by this Agreement;
(iii) any liability or other obligation of Parent or
Merger Sub; or
(iv) any violation or alleged violation by Parent of
any applicable laws, including without limitation, applicable
securities laws.
(b) Indemnification by the Company and the Shareholders.
Subject to the provisions of Section 8.1, the Company and the
Shareholders, severally but not jointly, shall indemnify and hold
harmless Parent and the Merger Sub and each their respective
Affiliates, officers, directors, stockholders, representatives and
agents (collectively, the "Parent Indemnitees") from and against and in
respect of any and all Losses (as defined below) incurred by, resulting
from, arising out of, relating to, imposed upon or incurred by the
Parent Indemnitee by reason of:
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(i) any inaccuracy in or breach of any of the Company
or such Shareholder's representations, warranties, covenants
or agreements contained in this Agreement; or
(ii) any misrepresentation contained in any statement
or certificate furnished by the Company or such Shareholder to
the Parent in connection with the transactions contemplated by
this Agreement;
provided, however, that with respect to any Shareholder, the maximum
liability of any Shareholder hereunder shall be limited to, and the
Parent Indemnitees shall only have recourse against, the actual number
of shares of Parent Common Stock received by such Shareholder in the
Merger.
For purposes of this Agreement, the term, "Losses" means any and all
deficiencies, judgments, settlements, demands, claims, suits, actions or causes
of action, assessments, liabilities, losses, damages (whether direct, indirect,
incidental or consequential), interest, fines, penalties, costs and expenses
(including, without limitation, reasonable legal, accounting and other costs and
expenses incurred in connection with investigating, defending, settling or
satisfying any and all demands, claims, actions, causes of action, suits,
proceedings, assessments, judgments or appeals, and in seeking indemnification
therefor).
(c) Insurance Proceeds, Etc. All Losses shall be reduced by
(i) the amount of any insurance proceeds (minus all reasonably
allocable costs, charges and expenses incurred by the indemnified party
in obtaining such recovery) actually recovered in respect thereof and
(ii) any tax-related benefits if and when actually realized or received
(but only after taking into account the tax benefits to which the
indemnified party would be entitled without regard to such item). Any
insurance recovery or tax-related benefits referred to in the previous
sentence shall be promptly repaid by the indemnified party to the
indemnifying party following the time at which such amounts are
actually recovered or realized or received; provided that in the event
that any such insurance recovery or tax-related benefit is set aside or
disallowed and the indemnified party had paid any amounts to the
indemnifying party in respect thereof (or the amount by which the
indemnified party was indemnified was reduced in respect thereof), then
the obligation of the indemnifying party to indemnify with respect to
such amounts shall be reinstated immediately and such amounts shall be
paid promptly to the indemnified party in accordance with the
provisions of this Agreement.
ARTICLE IX
GENERAL PROVISIONS
9.1 Notices. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally or telecopied or
sent by overnight courier, or by certified or registered mail, postage prepaid,
and shall be deemed to have been given, dated and received when so delivered
personally or by courier or telecopied, or, if mailed, five business
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<PAGE> 28
days after the date of mailing to the following address or telecopy number, or
to such other address or addresses as such person may subsequently designate by
notice given hereunder:
<TABLE>
<S> <C>
(a) if to Parent or Merger Sub, to: with copies to
Omicron Technologies, Inc. Carmine J. Bua III, Esq.
114 W. Magnolia Street 3838 Camino Del Rio North
Suite 400-128 Suite 333
Bellingham, WA 98226 San Diego, CA 92108
Telephone: (877) 903-2288 Telephone: (619) 280-8000
Facsimile: (619) 280-8001
</TABLE>
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<TABLE>
<S> <C>
(b) If to the Company or ViaSpace, to: with copies to:
ViaSpace Radio, Inc. Brand Farrar & Buxbaum LLP
2400 Lincoln Avenue 515 South Flower Street, Suite 3500
Altadena, California 91001 Los Angeles, California 90071-2201
Telephone: (626) 296-6310 Telephone: (213) 228-0288
Facsimile: (626) 296-6311 Facsimile: (213) 426-6222
Attention: Chief Executive Officer Attention: John M. Iino, Esq.
(c) If to Noreen to: with copies to:
Fax: (413) 643-8342 Theodore R. Harper Phone (919) 420-1709
Gary Noreen Kilpatrick Stockton Fax: (919) 420-1800
616 Groveview Lane 2727 Glenwood Ave., Suite 400
La Canada Flintridge, CA 01001 Raliegh, NC 27612
Telephone (818) 790-9863
(d) If to RSC to: with copies to:
Gary Noreen Theodore R. Harper
Radio Satellite Corporation Kilpatrick Stockton
616 Groveview Lane 3737 Glenwood Ave., Suite 400
La Canada Flintridge, CA 91011 Raleigh, NC 27612
Telephone: (818) 790-9863 Phone: (919) 420-1709
Fax: (413) 643-8342 Fax: (919) 420-1800
</TABLE>
9.2 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original and all of which
shall be considered one and the same agreement and shall become effective when
two or more counterparts have been signed by each of the parties and delivered
to the other parties, it being understood that all parties need not sign the
same counterpart.
9.3 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement,
together with the Exhibits and Schedules, constitutes the entire agreement of
the parties with respect to
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the subject matter hereof, and supersedes all prior oral and written (including,
without limitation, the Memorandum of Understanding dated as of August 7, 1998
by and between Parent and ViaSpace, and all contemporaneous oral, agreements and
understandings among the parties with respect to the subject matter hereof. This
Agreement is not intended to confer upon any Person, other than the parties, any
rights or remedies hereunder.
9.4 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of California, without giving effect to
the principles of conflicts of law thereof.
9.5 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or unenforceable, all other provisions of this Agreement shall
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. In the event that the enforceability of any noncompetition
or similar covenants contained herein is called into question as the result of
time, geographical or other applicable limitations specified in such covenants,
such time, geographical or other applicable limitations shall be deemed modified
to the minimum extent necessary to render the applicable provisions of such
covenants enforceable.
9.6 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties.
9.7 SPECIFIC PERFORMANCE. The parties acknowledge that irreparable
damage would result if this Agreement were not specifically enforced, and they
therefore consent that the rights and obligations of the parties under this
Agreement may be enforced by a decree of specific performance issued by a court
of competent jurisdiction. Such remedy shall, however, not be exclusive and
shall be in addition to any other remedies which any party may have under this
Agreement or otherwise.
9.8 FEES AND EXPENSES. All costs and expenses, including all fees and
expenses of attorneys, investment bankers, lenders, financial advisers and
accountants, in connection with the negotiation, execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and
thereby, shall be paid by the party incurring such costs and expenses, provided,
however, that ViaSpace and the Company may use all advances received from Parent
in its sole discretion, in whole or in part to pay for any and all costs
associated in the formation of the Company and the preparation of this Agreement
and consummation of the transaction contemplated hereby.
9.9 CONSTRUCTION: INTERPRETATION. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Article, Schedule, schedule,
exhibit, recital and party references are to this Agreement unless otherwise
stated. No party, nor its counsel, shall be deemed the drafter of this Agreement
for purposes of construing the provisions of this Agreement, and all provisions
of this
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<PAGE> 31
Agreement shall be construed in accordance with their fair meaning, and not
strictly for or against any party.
29
<PAGE> 32
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by or on behalf of each of the parties as of the date first above written.
OMICRON TECHNOLOGIES, INC., a
Florida corporation
By: /s/ BARRETT E.G. SLEEMAN By: /s/ GARY K. NOREEN
------------------------------- -------------------------------
Barrett E.G. Sleeman, President Gary K. Noreen
VIASPACE RADIO, INC., a California VIASPACE TECHNOLOGIES LLC,
corporation a Delaware limited liability
company
By: /s/ CARL KUKKONEN By: /s/ CARL KUKKONEN
------------------------------- -------------------------------
Dr. Carl Kukkonen, President Dr. Carl Kukkonen, President
INTERACTIVE RADIO RADIO SATELLITE CORPORATION,
CORPORATION, a Neveda corporation a California corporation
By: /s/ SAK NARWAL By: /s/ GARY K. NOREEN
------------------------------- -------------------------------
Sak Narwal, President Gary K. Noreen, Chairman & CEO
30
<PAGE> 1
EXHIBIT 6.11
OMICRON TECHNOLOGIES, INC. SHARE PURCHASE AGREEMENT
<PAGE> 2
EXHIBIT 6.11
OMICRON TECHNOLOGIES, INC.
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "Agreement") is entered into and
effective as of the date executed herein by and between SAKWINDER NARWAL (the
"PURCHASER") and OMICRON TECHNOLOGIES, INC., a Florida corporation (the
"COMPANY").
1. PURCHASE OF SHARES: The Purchaser agrees to purchase a total of SIX
MILLION SEVEN HUNDRED THIRTY THOUSAND (6,730,000) shares of common stock of the
COMPANY (the "Shares"), at a price of FIFTY-TWO CENTS ($0.52) U.S. per share,
for a total purchase price of THREE MILLION FIVE HUNDRED THOUSAND DOLLARS
($3,500,000.00) U.S. Each share purchased will have one common stock purchase
warrant attached exercisable at a price of FIFTY-TWO CENTS ($0.52) U.S. per
share for a three (3) year period.
2. RESTRICTED NATURE OF SHARES: The Shares to be issued to the
PURCHASER shall be subject to a one (1) year holding period before the Shares
are eligible for sale in the U.S. public market. The sale of the Shares will be
further limited by the resale provisions of SEC Rule 144.
3. ADDITIONAL RESTRICTED NATURE OF RESTRICTED SHARE: Notwithstanding
the one (1) year holding period for the Shares, the PURCHASER is an "affiliate"
or "control person" of the Company and will be subject to certain limitations
with respect to the sale of its Shares. Accordingly, as a result of such a
designation, the sale of the Shares will be limited by SEC Rule 144 for such
time as the PURCHASER is an affiliate or a control person of the COMPANY.
4. PRIVATE SALE ACKNOWLEDGEMENT: The parties acknowledge and agree that
the issuance of the Shares is being undertaken as a private sale pursuant to
Section 4(1) of the Securities Act of 1933, as amended and the Florida
Securities and Investor Protection Act, Section 517.061 and is not being
transacted via a broker-dealer and/or in the public market.
Page 1 of 4
<PAGE> 3
5. PAYMENT: Payment for the Shares will be made in United States
dollars delivered to the Company via check or wire transfer within ten (10)
business days from the execution of this Agreement.
6. RECEIPT OF INFORMATION: Purchaser represents that he has received
all of the information he considers necessary or appropriate for deciding
whether to purchase the Shares including but not limited to the COMPANY'S
Business Plan and all requested documents with respect to the COMPANY'S current
business and financial status. The PURCHASER further represents that he has had
the opportunity to ask questions and receive answers from the Company regarding
the terms and conditions of the purchase of the Shares and the business,
properties, prospects and financial condition of the COMPANY and to obtain
additional information necessary to verify the accuracy of any information
furnished to him which he has access.
7. INVESTMENT EXPERIENCE: The PURCHASER represents that he is
experienced in evaluating and investing in securities of companies in the stage
of development of the COMPANY and acknowledges that he is able to fend for
himself, can bear the economic risk of his investment, and has such knowledge
and experience in financial and business matters that he is capable of
evaluating the merits and risks of the investment in the Shares.
8. PURCHASE ENTIRELY FOR OWN ACCOUNT: The PURCHASER represents that the
Shares to be purchased will be acquired for investment purposes for his own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof.
9. NO APPROVAL BY REGULATORY AGENCY: The PURCHASER further acknowledges
and understands that the Shares are being offered in reliance on and pursuant to
Section 4(1) of the Securities Act of 1933, as amended and the private placement
exemption provided in the Florida Securities and Investor Protection Act,
Section 517.061, and that no governmental body or regulatory agency has approved
or endorsed the COMPANY'S offering of these Shares.
Page 2 of 4
<PAGE> 4
10. ARBITRATION: The parties hereby submit all controversies, claims
and matters of difference arising out of this Agreement to arbitration in
Vancouver, British Columbia according to the rules and practices of the Canadian
Arbitration Association from time to time in force. This submission and
agreement to arbitrate shall be specifically enforceable. The Agreement shall
further be governed by the laws of the State of Florida.
11. INTERPRETATION OF AGREEMENT: The parties agree that should any
provision of this Agreement be found to be ambiguous in any way, such ambiguity
shall not be resolved by construing such provisions or any part of the entire
Agreement in favor of or against any party herein, but rather by construing the
terms of this Agreement fairly and reasonably in accordance with their generally
accepted meaning.
12. MODIFICATION OF AGREEMENT: This Agreement may be amended or
modified in any way at any time by an instrument in writing stating the manner
in which it is amended or modified and signed by each of the parties hereto. Any
such writing amending or modifying this Agreement shall be attached to and kept
with this Agreement.
13. ATTORNEY FEES: if any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of the Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorney's fees and other costs incurred in that
action or proceeding, in addition to any other relief to which it may be
entitled.
14. ENTIRE AGREEMENT: This Agreement constitutes the entire Agreement
and understanding of the parties hereto with respect to the matters herein set
forth, and all prior negotiations, writings and understandings relating to the
subject matter of this Agreement are merged herein and are superseded and
canceled by this Agreement.
Page 3 of 4
<PAGE> 5
15. COUNTERPARTS: This Agreement may be signed in one or more
counterparts.
16. FACSIMILE TRANSMISSION SIGNATURES: A signature received pursuant to
a facsimile transmission shall be sufficient to bind a party to this Agreement.
DATED: November 10, 1999 By: /s/ SAKWINDER NARWAL
-------------------------------------
SAKWINDER NARWAL
OMICRON TECHNOLOGIES, INC.
DATED: November 10, 1999 BY: /s/ BARRETT SLEEMAN
-------------------------------------
BARRETT SLEEMAN
President
Page 4 of 4
<PAGE> 1
EXHIBIT 6.12
COMMON STOCK PURCHASE AGREEMENT
<PAGE> 2
COMMON STOCK PURCHASE WARRANT
Exercise Price: $0.52
THIS WARRANT REPRESENTS THE RIGHT TO PURCHASE
UP TO 6,730,000 SHARES OF THE COMMON STOCK OF
OMICRON TECHNOLOGIES, INC.
FOR VALUE RECEIVED, Omicron Technologies, Inc., a Florida corporation, (the
company), promises to sell and deliver to SAKWINDER NARWAL (the Holder) up to
6,730,000 shares of the Common Stock, of par value $ 0.001, of the Company,
shares upon the payment by the Holder to the Company of the price of $0.52 per
share (being the Exercise Price), in U.S. Funds and which will be accepted
subject to collection. This Warrant is issued on this 10th day of
November, 1999.
TRANSFER RESTRICTION NOTICE.
This Warrant, and the securities issuable upon its exercise (in whole or part)
have not been registered under the Securities Act of 1933, as amended (the Act),
nor the securities laws of any other jurisdiction, and may not be sold,
transferred or otherwise disposed of unless:
i) an appropriate S.E.C. Registration Statement covering the Warrants and their
underlying securities is in effect; or
ii) Company counsel is satisfied that such registration is not then required and
that this Warrant and the underlying securities may be sold, transferred or
otherwise disposed of in the manner contemplated without registration under the
Act.
Holder Of Record
Sakwinder Narwal
2202 - 808 Nelson Street
Vancouver, B.C. V6Z 2H2
<PAGE> 3
1. WARRANT EXERCISE
The holder shall be entitled to purchase up to 6,730,000 shares the Common Stock
of the Issuer, at any time from the date of this agreement, until the Expiration
Date.
To exercise this Warrant, in whole or in part, the Holder shall tender payment
in U.S. funds, to the Company of the Exercise Price per share, multiplied by the
number of shares being purchased, with a properly completed Form Of Exercise,
together with this Original Warrant Agreement.
If exercise is for less than the aforesaid shares, the Company shall issue a new
Warrant to the Holder, covering the unexercised shares, upon the same terms and
conditions hereof.
2. DEMAND REGISTRATION.
At any time prior to the Expiration Date, the holders of a majority of the
aggregate securities issuable upon the exercise of this Warrant and all other
such Warrants which have been issued by the Company as part of the same
transaction for which this Warrant has been issued, may by written notice to the
Company, request that the Company cause a registration statement covering the
Warrant(s) and the underlying shares be filed with the Securities And Exchange
Commission, (S.E.C.) as expeditiously as possible after such notice. The Company
shall use its best efforts to cause such filing, and shall bear all of the
reasonable cost and expenses to file such registration statement with the S.E.C.
and all applicable BLUE Sky filings.
The Company shall not be obligated to file a registration statement with the
S.E.C. at a time when it would require a special financial audit be undertaken
to furnish the appropriate financial statements for such registration statement.
In lieu of a registration statement with the S.E.C., upon the Holders demand for
registration, the Company may at its option, repurchase the remaining Warrants
from the Holders. In such case, the purchase price shall be that price. Per
share, which is equal to the average closing bid price for the 30 days
immediately preceding the demand for registration, minus the Exercise Price. The
Holder has no right to request that the Company take this course of action in
lieu of registration. This repurchase is strictly optional and the Company may
only consider this course of action if its working capital
<PAGE> 4
requirements allows for the expenditure of the funds necessary to accomplish
this repurchase option.
The Holders shall cooperate fully with the Company by providing all necessary
and relevant information required to effectuate a registration statement.
3. PIGGYBACK REGISTRATION
At any time prior to the Expiration Date, should the Company file a new
registration statement under the Act covering any securities to be issued by the
Company, (other than a registration statement on Form S-8 or S-20 or any Form
which dose not include substantially the same information as would be required
for the general registration of securities) the Company shall give prompt
written notice to the Holder, offering to include in such registration statement
any of the Warrants and underlying shares hereof The Company shall bear all of
the reasonable cost of such filings. The Holder must notify the Company within
twenty days of receipt of the aforesaid notice of his/her intention to
participate in this registration.
The Holder shall cooperate fully with the Company in the preparation of such
registration statement by furnishing information required for such filings. All
piggyback registration rights terminate on the Expiration Date.
4. STOCKHOLDER RIGHTS
By virtue of this Warrant, the Holder hereof is not entitled to any legal or
equitable rights, including voting rights, as a shareholder in the Company.
5. ANTI-DILUTION PROVISIONS
The number of shares underlying this Warrant may be proportionately increased in
the event that the Company causes to be more shares as a stock dividend or other
such reclassification, or conversely, proportionately decreased if a reverse
split or other such reclassification is declared. In the event that shareholders
are granted the right to purchase additional shares from the proceeds of a cash
dividend by the Company, such event shall be treated as a stock dividend as
relates to the Holder's Anti-dilutive rights.
<PAGE> 5
6. SUCCESSOR CORPORATION
All rights granted to the Holder hereof shall survive any merger, consolidation
or other business combination of the Company with another (successor) entity.
The Holder shall have the same anti-dilutive rights in such case, in the
securities of the new entity.
7. EXERCISE PRICE ADJUSTMENTS
Upon the occurrence of each event requiring an adjustment in the Exercise Price,
or the number of underlying shares, the Company shall give prompt written
notice, see forth the computation used to arrive at the adjusted price or number
of underlying shares. The computations shall be made by the Company's Chief
Financial Officer or the Company's accountants. Such computations shall be
conclusive and binding upon the Holder unless written objection is given to the
Company, within fourteen days from the date of the Company's initial notice.
8. DISSOLUTION OR LIQUIDATION OF THE COMPANY
In the event that the Company is dissolved, or otherwise liquidates a
substantial portion (i.e. 60% or more) of its assets with the intent to make a
distribution to shareholders of the proceeds therefrom (including the sale of
assets of a wholly-owned subsidiary) the Holder shall be entitled, after proper
exercise of the Warrants, in Whole or in part, to participate in the
distribution on the same terms and conditions as are all of the other
shareholders.
In such event, the Company shall give 30 days written notice to the Holder.
Failure of the Holder to exercise within 30 days from the date of the Company's
notice, shall cause all such rights in the Warrants to terminate. The Company
may finalize the intended transaction but it may not make any shareholder
distribution during the 30 day notice period.
9. NON-ADJUSTMENT EVENTS
It is acknowledged and agreed that no price or quantity adjustments shall be
required in the event that the Company issues shares of its common stock: a)
upon the exercise of
<PAGE> 6
Warrants or options granted previously to the date hereof:) b) pursuant to any
stock option plan or employee benefit plan: or c) for any purpose in connection
with debt or equity offerings.
10. AVAILABLE SHARES
The Company agrees to reserve and keep available out of its authorized, and
issued capital shares, sufficient shares to cover the exercise of all of the
shares covered by this Warrant Agreement. Further, that upon issuance, such
shares shall be validly issued, fully paid and non-assessable.
11. MISCELLANEOUS
a) LOSS OF WARRANT. In the event of the loss, theft, destruction or
mutilation of this warrant Agreement, the Company shall execute and
deliver a new Warrant in exchange for and upon the surrender and
cancellation of such mutilated or defaced Warrant. If the Warrant
Agreement was lost or stolen, the Company may, at its option, as a
condition to the execution and delivery of a new Warrant Agreement,
require that the Holder produce satisfactory indemnity to the Company.
The Holder may be required to past a surety bond to protect the Company
from conflicting claims.
b) RECORD OWNER. At the time this Warrant is surrendered for exercise,
together with the completed Form of Exercise and the monetary
consideration required, the person so exercising shall be deemed to be
the Holder of record, notwithstanding that the stock transfer books of
the Company shall then be closed, or that certificates representing
such securities shall be actually delivered to such person.
c) FRACTIONAL SHARES. No fractional shares shall be issued under any
circumstances. The Holder may elect to remit additional funds to
obtain the next full share, or the Company may reimburse the Holder for
such fractional amount. In no event shall the Company issue more
shares than were duly registered in accordance with the federal and
state securities laws, or to which an exemption therefrom applies.
<PAGE> 7
d) NOTICES. All notices required hereunder shall be in writing,
delivered by certified, registered or express mail, return receipt
requested, to the address of record of the party being noticed. All
time periods to be determined under notice shall be so counted from the
actual date of mailing.
e) BEST EFFORTS. In the event that a registration is undertaken, the
Company agrees to use its best efforts to assure that the Warrants and
the underlying shares are included therein on a timely basis.
f) STOCK ISSUANCE TAXES. The Company shall bear full responsibility for
payment of any federal or state stock issuance taxes which may be
required.
g) TRANSFER RESTRICTIONS. This Warrant, and its underlying shares of
common stock have not been registered under the Act. Accordingly, this
Warrant Agreement, including replacements, shall bear the following
legend upon its face:
TRANSFER RESTRICTION NOTICE.
This Warrant, and the securities issuable upon its exercise (in whole
or in part) have not been registered under the Securities Act of 1933,
as amended (the Act), nor the securities laws of any other
jurisdiction, and may not be sold, transferred or otherwise disposed of
unless:
i) an appropriate S.E.C, Registration Statement covering the
Warrants and their underlying securities is in effect; or
ii) Company counsel is satisfied that such registration is not
than require and that this Warrant and the underlying
securities may be sold, transferred or otherwise disposed of
in the manner contemplated without registration under the Act.
All Warrants presented for transfer must be accompanied by a duly
executed and completed Form Of Assignment. Prior to the effectiveness
of any future registration statement covering this Warrant Agreement,
the Company may accept or reject such transfer attempt, based upon its
counsel's opinion as to whether or not such an event may take place in
the absence of an effective registration. In case of rejection, the
Company shall not have any legal obligation to effectuate such
transfer.
<PAGE> 8
h) ENTIRE BINDING AGREEMENT. This agreement represents the entire
agreement between the two parties. No change, alteration, or other
modification hereof may be made except by a further written agreement,
duly executed by the parties hereto. No oral agreement or
understanding, express or implied, shall invalidate, empower or affect
this written Agreement. By acceptance of this Warrant Agreement, the
Holder agrees to be bound by all of its terms and conditions.
i) INTERPRETIVE LAW. This Warrant Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. In the
event of a controversy arising herefrom, it is agreed and consented to
that jurisdiction and venue of the courts of the State of Florida.
j) EXPIRATION DATE. This Warrant expires at 5.00 P.M. (Eastern Time) on
the third anniversary of the date of execution hereof. In the event
that the Holder demands registration (paragraph 2 above) of the Warrant
and the underlying shares, this Warrant Agreement shall not terminate
until the expiration of six (6) months from the effective Date of such
registration, or upon the exercise hereof, which ever occurs first. The
purpose of this provision is to assure that the Holder does not suffer
the loss of the right to exercise hereunder from a delay in the
effectiveness of a registration, for any reason.
IN WITNESS WHEREOF, the Company, by its duly authorized officers has executed
this Warrant on the 10th day of November, 1999.
OMICRON TECHNOLOGIES, INC.
By: /s/ DAVID NAYLOR By: /s/ BARRETT SLEEMAN
---------------------------------- ----------------------------------
David Naylor - Secretary Barrett Sleeman - President
<PAGE> 1
EXHIBIT 6.13
COMMON STOCK PURCHASE WARRANT (SAMPLE)
<PAGE> 2
EXHIBIT 6.13
COMMON STOCK PURCHASE WARRANT
THIS WARRANT REPRESENTS THE RIGHT TO PURCHASE
UP TO 25,000 SHARES OF THE COMMON STOCK OF
OMICRON TECHNOLOGIES, INC.
FOR VALUE RECEIVED, OMICRON TECHNOLOGIES, INC., a Florida corporation,
(the company), promises to sell and deliver to shares of the
Common Stock, of par value $0.001, of the Company, shares upon the
payment by the Holder to the Company of the Exercise Price as set out
below, in U.S. Funds and which will be accepted subject to collection.
This Warrant is issued on this th day of , 1999.
The Exercise Price is as follows:
TRANSFER RESTRICTION NOTICE.
This Warrant, and the securities issuable upon its exercise (in whole or
part) have not been registered under the Securities Act of 1933, as
amended (the Act), nor the securities laws of any other jurisdiction,
and may not be sold, transferred or otherwise disposed of unless:
i) an appropriate S.E.C. Registration Statement covering the Warrants
and their underlying securities is in effect; or
ii) Company counsel is satisfied that such registration is not then
required and that this Warrant and the underlying securities may be
sold, transferred or otherwise disposed of in the manner contemplated
without registration under the Act.
Holder Of Record
<PAGE> 3
1. WARRANT EXERCISE.
The Holder shall be entitled to purchase up to shares the Common
Stock of the Issuer, at any time from the date of this agreement, until
the Expiration Date.
To exercise this Warrant, in whole or in part, the Holder shall tender
payment in U.S. funds, to the Company of the Exercise Price per share,
multiplied by the number of shares bring purchased, with a properly
completed Form Of Exercise, together with this Original Warrant
Agreement.
If exercise is for less than the aforesaid shares, the Company shall
issue a new Warrant to the Holder, covering the unexercised shares, upon
the same terms and conditions hereof.
2. DEMAND REGISTRATION.
At any time prior to the Expiration Date, the holders of a majority of
the aggregate securities issuable upon the exercise of this Warrant and
all other such Warrants which have been issued by the Company as part of
the same transaction for which this Warrant has been issued, may by
written notice to the Company, request that the Company cause a
registration statement covering the Warrant(s) and the underlying shares
be filed with the Securities And Exchange Commission, (S.E.C.) as
expeditiously as possible after such notice. The Company shall use its
best efforts to cause such filing, and shall bear all of the reasonable
cost and expenses to file such registration statement with the S.E.C.
and all applicable BLUE Sky filings.
The Company shall not be obligated to file a registration statement with
the S.E.C. at a time when it would require a special financial audit be
undertaken to furnish the appropriate financial statements for such
registration statement.
In lieu of a registration statement with the S.E.C., upon the Holders
demand for registration, the Company may at its option, repurchase the
remaining Warrants from the Holders. In such case, the purchase price
shall be that price. Per share, which is equal to the average closing
bid price for the 30 days immediately preceding the demand for
registration, minus the Exercise Price. The Holder has no right to
request that the Company take this course of action in lieu of
registration. This repurchase is strictly optional and the Company may
only consider this course of action if its working capital requirements
allows for the expenditure of the funds necessary to accomplish this
repurchase option.
The Holder shall cooperate fully with the Company by providing all
necessary and relevant information required to effectuate a registration
statement.
<PAGE> 4
1. PIGGYBACK REGISTRATION
At any time prior to the Expiration Date, should the Company file a new
registration statement under the Act covering any securities to be
issued by the Company, (other than a registration statement on Form S-8
or S-20 or any Form which dose not include substantially the same
information as would be required for the general registration of
securities) the Company shall give prompt written notice to the Holder,
offering to include in such registration statement any of the Warrants
and underlying shares hereof The Company shall bear all of the
reasonable cost of such filings. The Holder must notify the Company
within twenty days of receipt of the aforesaid notice of his/her
intention to participate in this registration.
The Holder shall cooperate fully with the Company in the preparation of
such registration statement by furnishing information required for such
filings. All piggyback registration rights terminate on the Expiration
Date.
2. STOCKHOLDER RIGHTS
By virtue of this Warrant, the Holder hereof is not entitled to any
legal or equitable rights, including voting rights, as a shareholder in
the Company.
3. ANTI-DILUTION PROVISIONS
The number of shares underlying this Warrant may be proportionately
increased in the event that the Company causes to be more shares as a
stock dividend or other such reclassification, or conversely,
proportionately decreased if a reverse split or other such
reclassification is declared. In the event that shareholders are granted
the right to purchase additional shares from the proceeds of a cash
dividend by the Company, such event shall be treated as a stock dividend
as relates to the Holder's Anti-dilutive rights.
4. SUCCESSOR CORPORATION
All rights granted to the Holder hereof shall survive any merger,
consolidation or other business combination of the Company with another
(successor) entity. The Holder shall have the same anti-dilutive rights
in such case, in the securities of the new entity.
5. EXERCISE PRICE ADJUSTMENTS
Upon the occurrence of each event requiring an adjustment in the
Exercise Price, or the number of underlying shares, the Company shall
give prompt written notice, setting forth the computation used to arrive
at the adjusted price or number of underlying shares. The computations
shall be made by the Company's Chief Financial Officer or the Company's
accountants. Such computations shall be conclusive and binding upon the
Holder unless
<PAGE> 5
written objection is given to the Company, within fourteen days from the
date of the Company's initial notice.
6. DISSOLUTION OR LIQUIDATION OF THE COMPANY
In the event that the Company is dissolved, or otherwise liquidates a
substantial portion (i.e. 60% or more) of its assets with the intent to
make a distribution to shareholders of the proceeds therefrom (including
the sale of assets of a wholly-owned subsidiary) the Holder shall be
entitled, after proper exercise of the Warrants, in Whole or in part, to
participate in the distribution on the same terms and conditions as are
all of the other shareholders.
In such event, the Company shall give 30 days written notice to the
Holder. Failure of the Holder to exercise within 30 days from the date
of the Company's notice, shall cause all such rights in the Warrants to
terminate. The Company may finalize the intended transaction but it may
not make any shareholder distribution during the 30 day notice period.
7. NON-ADJUSTMENT EVENTS
It is acknowledged and agreed that no price or quantity adjustments
shall be required in the event that the Company issues shares of its
common stock: a) upon the exercise of Warrants or options granted
previously to the date hereof:) b) pursuant to any stock option plan or
employee benefit plan: or c) for any purpose in connection with debt or
equity offerings.
8. AVAILABLE SHARES
The Company agrees to reserve and keep available out of its authorized,
and issued capital shares, sufficient shares to cover the exercise of
all of the shares covered by this Warrant Agreement. Further, that upon
issuance, such shares shall be validly issued, fully paid and
non-assessable.
9. MISCELLANEOUS
a) LOSS OF WARRANT. In the event of the loss, theft, destruction or
mutilation of this Warrant Agreement, the Company shall execute and
deliver a new Warrant in exchange for and upon the surrender and
cancellation of such mutilated or defaced Warrant.
<PAGE> 6
If the Warrant Agreement was lost or stolen, the Company may, at its
option, as a condition to the execution and delivery of a new Warrant
Agreement, require that the Holder produce satisfactory indemnity to the
Company. The Holder may be required to post a surety bond to protect the
Company from conflicting claims.
b) RECORD OWNER. At the time this Warrant is surrendered for exercise,
together with the completed Form of Exercise and the monetary
consideration required, the person so exercising shall be deemed to be
the Holder of record, notwithstanding that the stock transfer books of
the Company shall then be closed, or that certificates representing such
securities shall be actually delivered to such person.
c) FRACTIONAL SHARES. No fractional shares shall be issued under any
circumstances. The Holder may elect to remit additional funds to obtain
the next full share, or the Company may reimburse the Holder for such
fractional amount. In no event shall the Company issue more shares than
were duly registered in accordance with the federal and state securities
laws, or to which an exemption therefrom applies.
d) NOTICES. All notices required hereunder shall be in writing, delivered
by certified, registered or express mail, return receipt requested, to
the address of record of the party being noticed. All time periods to be
determined under notice shall be so counted from the actual date of
mailing.
e) BEST EFFORTS. In the event that a registration is undertaken, the
Company agrees to use its best efforts to assure that the Warrants and
the underlying shares are included therein on a timely basis.
f) STOCK ISSUANCE TAXES. The Company shall bear full responsibility for
payment of any federal or state stock issuance taxes which may be
required.
g) TRANSFER RESTRICTIONS. This Warrant, and its underlying shares of common
stock have not been registered under the Act. Accordingly, this Warrant
Agreement, including replacements, shall bear the following legend upon
its face:
TRANSFER RESTRICTION NOTICE.
This Warrant, and the securities issuable upon its exercise (in whole or in
part) have not been registered under the Securities Act of 1933, as amended (the
Act), nor the securities laws of any other jurisdiction, and may not be sold,
transferred or otherwise disposed of unless:
<PAGE> 7
i) an appropriate S.E.C. Registration Statement covering the Warrants
and their underlying securities is in effect; or
ii) Company counsel is satisfied that such registration is not than
required and that this Warrant and the underlying securities may be sold,
transferred or otherwise disposed of in the manner contemplated without
registration under the Act.
All Warrants presented for transfer must be accompanied by a duly
executed and completed Form Of Assignment. Prior to the effectiveness of any
future registration statement covering this Warrant Agreement, the Company may
accept or reject such transfer attempt, based upon its counsel's opinion as to
whether or not such an event may take place in the absence of an effective
registration. In case of rejection, the Company shall not have any legal
obligation to effectuate such transfer.
h) ENTIRE BINDING AGREEMENT. This agreement represents the entire agreement
between the two parties. No change, alteration, or other modification
hereof may be made except by a further written agreement, duly executed
by the parties hereto. No oral agreement or understanding, express or
implied, shall invalidate, empower or affect this written Agreement. By
acceptance of this Warrant Agreement, the Holder agrees to be bound by
all of its terms and conditions.
i) INTERPRETIVE LAW. This Warrant Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. In the
event of a controversy arising herefrom, it is agreed and consented to
that jurisdiction and venue of the courts of the State of Florida.
j) EXPIRATION DATE. This Warrant expires at 5.00 P.M. (Eastern Time) on the
third anniversary of the date of execution hereof In the event that the
Holder demands registration (paragraph 2 above) of the Warrant and the
underlying shares, this Warrant Agreement shall not terminate until the
expiration of six (6) months from the effective date of such
registration, or upon the exercise hereof, which ever occurs first. The
purpose of this provision is to assure that the Holder does not suffer
the loss of the right to exercise hereunder from a delay in the
effectiveness of a registration, for any reason.
<PAGE> 8
IN WITNESS WHEREOF, the Company, by its duly authorized officers has
executed this Warrant on the day of , 1999.
OMICRON TECHNOLOGIES, INC.
By: By:
----------------------- -----------------------
Secretary President
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<S> <C>
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<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1999
<PERIOD-END> NOV-30-1999
<CASH> 3,535,888
<SECURITIES> 0
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<PP&E> 63,138
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<CURRENT-LIABILITIES> 114,311
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0
0
<COMMON> 40,046
<OTHER-SE> 26,103,481
<TOTAL-LIABILITY-AND-EQUITY> 26,644,390
<SALES> 0
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<OTHER-EXPENSES> 3,217,600
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<INCOME-TAX> 0
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<NET-INCOME> (3,227,542)
<EPS-BASIC> (0.13)
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