File # 333-89769
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
FORM SB-2
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
GOLDENACCESS.COM, INC.
(Exact name of Registrant as specified in its charter)
Florida 7372
65-0769954
(State of Incorporation) (Primary Standard Industrial
(IRS Employer Identification Number)
Classification Code Number)
6161 Blue Lagoon Drive, Suite 190
Miami, Florida, 33126
(305) 264-2401
(Address and telephone number of
Registrant's principal executive offices
and principal place of business)
Mr. Clifford Y. Pierce, President
GoldenAccess.Com, Inc.
1440 Kennedy Causeway, Suite 301
North Bay Village, FL 33141
(305) 861-2766
(Name, address and telephone number
of agent for service)
Copies to:
Mr. Gary Appelblatt, Esq.
Law Offices of Gary M. Appelblatt
3610 American River Drive, Suite 112
Sacramento, CA 95864
(916) 486-4200
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----------------
Approximate date of commencement of proposed distribution to public: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on the Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box: [XX]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration shall therefore become effective in accordance with Section 8
(a) of the Securities Act of 1933 or until the Registration Statement shall
become effective on such date as the Commissioner, acting pursuant to Section
8 (a), may determine.
Calculation of Registration Fee
================-----------------------------------------------==============
Title of each Dollar amount Proposed maximum Proposed Amount of
class of securities price per share maximum Registration
of securities to be aggregate fee
to be registered price for this
registered registration
=============================================================================
Common Shares $4,250,0001 $8.502 $4,250,0002 $1211.251
=============================================================================
(1) Dollar amounts of shares to be registered and registration fee
computations based upon the estimated market value asking price of $
8.50 per share for the 500,000 Common Shares registered hereby.
Additional fees, should the price rise, will be paid by amendment.
(2) There is currently no offering price. Of the securities registered
hereby, 129,300 Shares will be distributed to the shareholders and
agent of Cardiac Control services, Inc., a Delaware corporation, as a
stock dividend. The remaining 370,700 Shares are registered for future
sale by the holders thereof. Such sales, if sold, shall be made through
NASD members at normal mark ups, mark downs, or brokerage commissions.
See "SELLING SECURITYHOLDERS".
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GOLDENACCESS.COM, INC.
CROSS REFERENCE SHEET
Page
Items in Form SB-2 Location Number
1. Front of Registration Statement Same 1&5
and Outside Front Cover of
Prospectus
2. Inside Front and Inside Back Cover Page 6&81
Outside Back Cover Pages of Prospectus 82
3. Summary Information Summary; 9
Risk Factors Risk Factors 13
4. Use of Proceeds Not Applicable
5. Determination of Offering Not Applicable
Price
6. Dilution Not Applicable
7. Selling Securityholders Risk Factors; 33
Selling Securityholders 57
8. Plan of Distribution The Distribution 37
9. Legal Proceedings Same 69
10.Directors, Executive Management and Board of 59
Officers, Promoters Directors;
and Control Persons Principal Shareholders 58
Management
11.Security Ownership Principal Shareholders 58
Of Certain Beneficial
Owners and Management
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12.Description of Securities Same 66
13.Interests of Named Not Applicable
Experts and Counsel
14.Disclosure of Commission Limitation of Liability of 64
Position on Indemnification Directors and Officers
for Securities Act Liabilities
15.Organization within Corporate History 11
Last Five Years Business-The Company 46
16.Description of Business Same 43
17.Management's Discussion Same 38
and Analysis of Financial
Condition and Results of
Operations
18.Certain Relationships Not Applicable
19.Market for Common Equity Risk Factors - No Prior 32
and Related Stockholder Matters Trading Market
20.Executive Compensation Same 62
21.Financial Statements Same F1
22.Changes in and Disagreement Not Applicable
with Accountants on Accounting
and Financial Disclosure
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Subject to Completion, Dated November 12, 1999
PROSPECTUS
[LOGO]
GOLDENACCESS.COM, INC.
GOLDENACCESS.COM, INC.
500,000 SHARES OF COMMON STOCK
We are registering 500,000 shares of Common Stock ("Shares"), which have a
par value of [[$.001]] per share (the "Common Stock"). We are a Florida
corporation. Several of our founding shareholders are selling 385,100
shares, which represents 13.4% of our total issued and outstanding Common
Shares. See "SELLING SECURITYHOLDERS", page 53, and "THE DISTRIBUTION",
page 33. The shares which are the subject of this Prospectus (the "Shares")
constitute 17.4% of the total issued and outstanding Common Shares of the
Issuer. Following the effective date of the Registration Statement (the
"Registration") of which this Prospectus is a part, Potter Financial Inc.,
will distribute the 129,300 Shares, which represents approximately 4.5% of
our total issued and outstanding Common Shares, owned by Cardiac Control
Systems, Inc., to the shareholders of Cardiac Control Systems, Inc., and
agents, as a stock dividend and retain undistributed shares for future
sale. Cardiac Control Systems, Inc., shareholders will receive a
distribution of 1 Share for each 51 (fifty-one) shares of Common Stock of
Cardiac Control Systems, Inc., held of record on August 26, 1999, (the
"Distribution"). We, in conjunction with our market-makers, have fixed the
price of all the shares registered in this filing at $8.50 each. All of the
shares of common stock which we are being registered will be sold by the
selling shareholders at their discretion and we will have no control over
the timing of such sales. We are not receiving any of the proceeds of the
sales of these shares. NASD Broker/Dealers will sell these shares in the
open market in regular transactions and receive a commission, mark-up, or
mark-down on their sales. See "Description of Securities."
Prior to this Registration, there has been no public market for the Shares
and there can be no assurance that such a market will develop after the
Distribution. The Issuer is a recently formed corporation, which, as a
result of transactions entered into in connection with the Distribution, is
the surviving corporation of a merger with Golden Access.Com, Inc., a
Florida Corporation. See "Summary - Corporate History", page 7. The
Distribution will be made on the effective date of the Registration
Statement of which this Prospectus is a part or as soon thereafter as
practical (the "Distribution Date"). See "RISK FACTORS -- Absence of
Trading Market", page 9. We anticipate that the Shares will be quoted on
the National Association of Securities Dealers Automated Quotation System
("NASDAQ) Small Capitalization Market under the symbol "GLDA". This
Prospectus may be used by us or by any broker-dealer who may participate in
sales of the shares.
THE SECURITIES OFFERED HEREBY ARE HIGHLY SPECULATIVE AND INVOLVE A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" COMMENCING ON PAGE 9.
THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS
HAVE NOT APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
=========--------------------------------------===========================
Price to Underwriting Proceeds to Issuer
Public Discount or Other Persons
and Commissions
===========================================================================
Total (1) (2) (3)
===========================================================================
The date of this Prospectus is __________, 1999.
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Left Blank for color page insertion
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1. There is currently no offering price. Of the securities registered hereby,
129,300 Shares will be distributed to the shareholders and agent of Cardiac
Control Systems, Inc., as a stock dividend. The remaining 370,700 Shares are
registered for future sale by the holders thereof.
2. No underwriting discounts or commissions will be allowed or paid on the
Shares distributed as a stock dividend to the shareholders of Cardiac
Control Systems, Inc. The amount of discounts or commissions, if any, which
may be paid by the selling security holders on future resale of the Shares
registered hereby is not now known. Such sales, if sold, shall be made
through NASD members at normal mark ups, mark downs, or brokerage
commissions.
3. There will be no proceeds to the Issuer on the distribution of the Shares
to the shareholders of Cardiac Control Systems, Inc., or on the future
resale by the selling securityholders. The proceeds to the individual
selling securityholders on future resale of their 370,700 Shares
registered hereby cannot now be estimated, nor can the timing of the sale
of the shares registered hereby be anticipated as of the date of this
filing.
-------------------------------
THIS OFFERING INVOLVES SUBSTANTIAL RISKS (SEE "RISK FACTORS") AND SHOULD BE
CONSIDERED ONLY BY PERSONS ABLE TO BEAR THE ECONOMIC RISK OF THE INVESTMENT FOR
AN INDEFINITE PERIOD OF TIME. NO ESCROW ACCOUNT, TRUST OR OTHER SIMILAR
ARRANGEMENT HAS BEEN ESTABLISHED AND INVESTORS' FUNDS ARE TO BE PAID DIRECTLY TO
US. AT THE TIME OF SUBSCRIBING, AN INVESTOR WILL NOT BE ABLE TO ASCERTAIN HOW
MANY SHARES WILL BE PURCHASED BY OTHER INVESTORS.
UNTIL ________________, 1999 (90 DAYS AFTER THE DATE OF THIS PROSPECTUS) ALL
BROKER-DEALERS EFFECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR
NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS
WITH RESPECT TO SALES EFFECTED BY THEM.
FOR A PERIOD OF AT LEAST ONE YEAR FOLLOWING CLOSING OF THIS OFFERING, THE ISSUER
WILL BE REQUIRED BY THE SECURITIES EXCHANGE ACT OF 1934 TO FILE PERIODIC REPORTS
AND OTHER INFORMATION WITH THE SECURITIES AND EXCHANGE COMMISSION. SUCH MATERIAL
MAY BE INSPECTED AT THE COMMISSION'S PRINCIPAL OFFICERS AT 450 FIFTH STREET
N.W., WASHINGTON, D.C. 20459 AND COPIES OBTAINED ON PAYMENT OF CERTAIN FEES
PRESCRIBED BY THE COMMISSION.
ISSUER WILL FURNISH TO THE HOLDERS OF THE SHARES ANNUALLY REPORTS CONTAINING
AUDITED FINANCIAL STATEMENTS EXAMINED AND REPORTED UPON, AND WITH AN OPINION
EXPRESSED BY, AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT. THE ISSUER MAY FURNISH
OTHER UNAUDITED INTERIM REPORTS TO ITS SECURITYHOLDERS AS IT DEEMS APPROPRIATE.
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[LOGO]GOLDENACCESS
PROSPECTUS TABLE OF CONTENTS
Summary ..................................................................5
Our Company ..............................................................6
Risk Factors .............................................................9
Distribution ............................................................33
Management Discussion of Analysis of
Condition and Results of Operations ...................................34
Year 2000 Readiness Disclosure ..........................................35
Capitalization ..........................................................38
Business.................................................................39
Recent Acquisitions .....................................................52
Selling Securityholders .................................................53
Principal Shareholders ..................................................54
Management ..............................................................55
Description of Securities................................................62
Shares Eligible .........................................................63
Dividend Policy .........................................................65
Stock Transfer Agent ....................................................65
Experts .................................................................65
Legal Matters ...........................................................65
Available Information ...................................................66
Index to Financial Statements ...........................................F1
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SUMMARY
The following is a summary of certain information contained elsewhere in this
Prospectus, is intended only for quick reference, and is not intended to be
complete. Reference is made to, and this summary is qualified by, the more
detailed information set forth in this Prospectus, including those summarized
below, and the accompanying financial statements and assumptions referred to
herein, which should be read in its entirety. The following summary is,
therefore, qualified in its entirety by reference to the full text of this
Prospectus.
The Distribution
Distributed Company GoldenAccess.Com, Inc. a Florida corporation, was
merged with CathTech Group, Inc., a Florida
corporation and the surviving legal entity is
CathTech Group, Inc., which succeeded to the name
GoldenAccess.Com, Inc. (See "SUMMARY -- Corporate
History".)
Distributing Company Potter Financial Inc., a Florida corporation ,
will distribute the 129,300 Shares owned by Cardiac
Control Systems, Inc., to the shareholders of record on
August 26, 1999, of Cardiac Control Systems, Inc., and
agents, as a stock dividend and retain undistributed
shares for future sale. (See "THE DISTRIBUTION".)
Distribution Ratio Each of Cardiac Control Systems, Inc.,
shareholders will receive one (1) of our Common Shares,
par value $0.001 per share, for each 51 shares of
Cardiac Control Systems, Inc., Common Stock. (See "THE
DISTRIBUTION".)
Transfer Agent Sun Trust Bank will act as our transfer agent. (See
"Stock Transfer Agent".)
Shares to be Distributed The 129,300 Common Shares to be
distributed of Cardiac Control Systems, Inc.,
constitutes four and one half percent (4.5%) of the
issued and outstanding Common Shares of the Issuer. (See
"THE
DISTRIBUTION".)
Record date Close of business on August 26, 1999.
Distribution Date Upon the effective date of the Registration Statement
of which this Prospectus is a part or as soon
thereafter as practical. (See "THE DISTRIBUTION".)
Shares of Selling
Securityholders 500,000 shares of Common Stock registered hereby,
representing 17.4% of securityholder's respective
holdings, will be available for resale by such
shareholders subject to certain limitations. The
remaining 82.6% of their shares are restricted. (See
"SELLING SECURITYHOLDERS".) These shares constitute
17.4% of our issued and outstanding Common Stock.
Trading Market We are applying for admission to quotation of the
Shares on the Nasdaq Stock Market; however, there can be
no assurance that our Shares will be so listed. (See
"RISK FACTORS - No Prior Trading Markets" and
"Description of Securities-- Exchange Listing".
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OUR COMPANY
Our company, GOLDENACCESS.COM, INC., was incorporated on June 13, 1997
under the laws of the State of Florida. We specialize in inventive and superior
approaches to IP Telephony, offering a complete, fully integrated solution to IP
Telephony systems that includes the IP Telephony Gateway, Network Management and
billing software, as well as access to a Global Network for call termination.
This "one-stop" solution allows its customers and service providers of any size
to establish a service or rapidly launch a revenue service with minimal
investment or infrastructure, without the need to purchase additional supporting
software, hardware and network delivery contracts. This is the Golden Access
breakthrough.
We are based in Miami, Florida with offices in Argentina and our organization is
structured into three functional groups: Sales & Marketing, Operations and
Technical Support, and Engineering.
PRESENT STATUS
We have been operating a commercial IP telecom service using a third party
product, and recently deployed our new proprietary IP telephony product which
has been placed into existing markets. Our global carrier partners, currently
International Telephone Co., ("ITC") and Easton Telecom of Cleveland, a reseller
for Frontier Communications, jointly market services to our respective network
of customers. Our 1st phase was successfully completed in early 1999, when
Golden Access demonstrated the product between the U.S. and Argentina. Our 2nd
phase of market entry consisted of establishing a limited number of
international Commercial Service Agreements (CSA) in Argentina, Lebanon,
Columbia, and Uruguay and commenced a market trial period of 90 days which
confirmed the results of the first phase, and new product enhancements that
resulted. Load testing of the full functionality of the IP Telephony system, the
Gateway software and GateKeeper Network Management software under revenue
service conditions provided a window of opportunity for Golden Access to
fine-tune the network during this period. Partial commercial service was
launched in July, 1999. Full Commercial Service was launched in October, 1999,
with an intensive marketing promotion aimed at expanding our FSP network.
Over the next 120 days, we will deploy the IP Telephony Gateways in Japan,
Singapore, Korea, Germany, Netherlands, Belgium, Spain, Italy, France, and
Mexico, and establish appropriate distribution channels to service country.
Following deployment in these countries, we intend to proceed into Argentina,
Columbia, Taiwan, Hong Kong, China, Lebanon, and Austria. Golden Access's
product development philosophy has been to bundle the key functionality of the
IP Telephony system into two proprietary software packages, Gateway and
GateKeeper, which are designed to reside on a Windows NT operating system under
the product name ViP.
Gateway is the application software that performs the actual IP Telephony
function and GateKeeper is the application software that performs the Network
Management functions such as user authentication, routing, billing,
administration, and subscriber management for the service provider. The hardware
platform is based on the latest industrial grade PC technology available and
integrated with the industry leading Dialogic DM3/IPLink telephony and IP
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interfaces. Dialogic Inc., who is a wholly owned subsidiary of Intel, with 5%
owned by MicroSoft, is a strategic marketing and engineering partner to Golden
Access.
We are currently leasing an office facility of 4500 square feet on a year to
year basis for $5,488 per month, plus applicable sales tax, for administration,
technical support, and customer service. Our current offices are located at 6161
Blue Lagoon Drive, Suite 190, Miami, FL 33126 and the telephone number is (305)
264-2401. The facilities are adequate for our current needs and suitable
additional space, should it be needed, is expected to be available to
accommodate expansion of our operations on commercially reasonable terms. Our
offices in Argentina are in Cordoba, where we occupy 2000 sq. ft. and pay $700
per month. Information contained on our World Wide Web site,
http://www.GoldenAccess.com, does not constitute a part of this prospectus.
Unless otherwise indicated, the information in this prospectus, irrespective of
the date referenced, assumes that there is no exercise of outstanding options or
warrants to purchase additional shares.
CORPORATE HISTORY
CATHTECH, INC., a Florida Corporation, was formed to acquire GoldenAccess.com,
Inc. Pursuant to an Agreement of Merger filed with the Secretary of State of
Florida on August 26, 1999, and Articles of Merger filed with the Florida
Corporation Commission on August 26,, 1999, GoldenAccess.com, Inc. was merged
into CATHTECH, INC., in a transaction in which Cardiac Control Systems, Inc.,
issued 87.5% of the issued and outstanding Common Stock of CATHTECH, INC., to
the shareholders of GoldenAccess.com, Inc. issued and outstanding Common Stock.
GoldenAccess.com, Inc. was incorporated on June 13, 1997 by Clifford Y. Pierce
as the corporate successor to several non-incorporated and foreign ventures. In
July, 1999, we acquired the assets, software and business contracts and
agreements of several entities predominantly controlled by Mr. Pierce, which
make up the bulk of our ongoing services and products. All references in this
Prospectus to "us", "we", or the Issuer include GoldenAccess.com, Inc. and its
predecessors .
The Issuer was incorporated in Florida on August 20, 1999, as CathTech Group,
Inc., a Florida Corporation. Upon the effective date of its merger with
GoldenAccess.Com, Inc., the name of CathTech Group, Inc. was changed to
GoldenAccess.Com, Inc. Neither GoldenAccess.Com, Inc., nor any of its officers,
directors or employees had any prior or subsequent affiliation with Cardiac
Control Systems, Inc.. For accounting purposes the financial statements of
GoldenAccess.Com, Inc. and its predecessor are considered to be the financial
statements of the post-merger surviving corporation. The address of the
Company's principal office is 6161 Blue Lagoon Drive, suite 190, Miami, Florida,
33126, and the telephone number is (305) 264-2401.
Selected Financial Data
The selected financial data below is for the years ended June 30,1998 and 1999,
and for the quarter ending September 30, 1999 and 1998 have been derived from
our financial statements . We have never declared or paid any cash dividends on
our shares of capital stock. The selected financial data should be read in
conjunction with the financial statements and related notes thereto and other
financial information appearing elsewhere in this Prospectus and the discussion
under the caption "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS. "
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Selected Financial Data
Years Ended Three Months Ended
---------------------------------------------------------
---------------------------------------------------------
June 30, June 30, September 30, September 30,
1998 1999 1998 1999
Statement of
Operations
Sales 0 6,386
Research and 11,385 28,902
development
Consulting 0 1,050
Depreciation 0 948
Other 363 6,729
Net losses (11,748) (31,243)
Net loss per share (2.94) (7.81)
Weighted average 4,000 4,000 4,000 2,872,500
shares outstanding
Balance Sheet Data
Working capital (48,043)
(deficit)
Total assets 17,601
Liabilities 54,592
Stockholder's equity 36,991
1) The statement of earnings date and the balance sheet data for 1999 and 1998
are a part of our financial statements prior to our merger with CathTec Group,
Inc., which are included in their entirety elsewhere in this Prospectus.
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RISK FACTORS
These securities are highly speculative and involve substantial risks. You
should carefully consider the following risk factors before making an investment
decision. If any of the following risks actually occur, our business, financial
condition or results of operations could be materially adversely affected. In
that event, the trading price of our shares could decline, and you may lose part
or all of your investment.
Risks Related to Our Financial Condition and Our Business
1. We have a limited operating history, which makes evaluating our business
difficult.
GoldenAccess.Com, Inc was incorporated in Florida in 1997 to provide innovative
software solutions to meet the growing demands of the nascent Internet Protocol
(IP) telecom industry. Therefore, we have only a limited operating history with
which you may evaluate our business. You must consider the numerous risks and
uncertainties an early stage company like ours faces in the new and rapidly
evolving market for Internet-related services or in forecasting our future
operating results. These risks include our ability to:
o attract more customers;
o implement our sales, marketing and after-sales service initiatives,
domestically and internationally;
o increase awareness of our brand and continue to build user loyalty; o maintain
our current, and develop new, strategic relationships; o respond effectively to
competitive pressures; and o continue to develop and upgrade our network and
technology.
If we are unsuccessful in addressing these risks, sales of our products and
services, as well as our ability to maintain or increase our customer base, will
be substantially diminished. We commenced operations in June of 1997, and we
first recorded revenue in June of 1999, but did not begin shipping our principal
product, ViP, until July of 1999 . In addition, we cannot forecast operating
expenses based on our historical results because they are limited, and we are
required to forecast expenses in part on future revenue projections. We may not
successfully address any of these risks.
2. Investing in our common stock will provide you with an equity ownership in
our Company.
Investing in our common stock will provide you with an equity ownership in our
Company, GoldenAccess.Com, Inc.. As a GoldenAccess.Com, Inc., stockholder, you
may be subject to risks inherent in our business. The performance of your shares
will reflect the performance of our business related to, among other things, our
competition, general economic and market conditions and industry conditions. The
price of our common stock may decline and the value of your investment could
decrease. You should carefully consider the following factors as well as other
Information contained in this prospectus before deciding whether to invest in
shares of our common stock.
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3. We have a presence in a new and rapidly evolving industry.
Our markets are characterized by rapid technological change which may cause us
to incur significant development costs and prevent us from attracting new
customers The market for our products is characterized by rapid technological
change, frequent new product introductions and enhancements, uncertain product
life cycles and changing end-user customer demands. The introduction of products
embodying new technologies and the emergence of new industry standards could
render existing products obsolete or unmarketable and cause us to incur
significant development costs.
4. We have never been profitable and expect our losses to continue for the
foreseeable future.
We have never been profitable on an annual or quarterly basis. We had an
accumulated deficit of approximately $131,668 as of September 30, 1999. We
expect to continue to incur operating losses for the foreseeable future. Our
operating and marketing expenses have continuously increased since inception and
we expect them to continue to increase significantly during the next several
years. Accordingly, we will need to generate significant revenue to achieve
profitability. We may not be able to do so. Even if we do achieve profitability,
we cannot assure you that we will be able to sustain or increase profitability
on a quarterly or annual basis in the future. We intend to continue to make
significant investments in our research and development, marketing, services and
sales operations. We anticipate that these expenses could significantly precede
any revenues generated by the increased spending.
Our operating results have varied significantly from quarter to quarter and may
continue to do so in the future depending upon a number of factors affecting us
or our industry described below and elsewhere in this prospectus, including many
that are beyond our control. As a result, we believe that period-to-period
comparisons of our operating results are not necessarily meaningful, and you
should not rely on them as an indication of our future performance. In addition,
our operating results in a future quarter or quarters may fall below
expectations of securities analysts or investors and, as a result, the price of
our common stock may fluctuate. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
5. We may not be able to forecast our revenues accurately because our products
have variable sales cycles and because we do not know when our potential
end-user customers will place orders and finalize contracts.
The sales cycle for our products may cause license revenue and operating results
to vary significantly from period to period. To date, the sales cycle for our
products to our Corporate and ISP customers has taken up to three months in
foreign countries, while our Telco customers inherently will take longer to
evaluate/decide and could take up to 6-9 months for a final decision. Our sales
cycle has required pre-purchase evaluation by a significant number of
individuals in our customers' organizations. Since distributors and resellers
will have more direct exposure to many of our customers initially, and third
parties jointly market our software with us, we invest significant amounts of
time and resources educating and providing information to our prospective
customers regarding the use and benefits of our products. These channels will
determine the overall length of our sales cycles.
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Many of our customers evaluate our software slowly and deliberately, depending
on the specific technical capabilities of the customer, the size of the
deployment, the complexity of the customer's network environment, and the
quantity of hardware and the degree of hardware configuration necessary to
deploy our products.
We recognize revenues upon satisfaction of the requirements of AICPA Statement
of Position 97-2, which generally occurs in the same quarter that the order is
received. As a result, our quarterly revenues and operating results depend
primarily on the size, quantity and timing of orders received for our products
during each quarter. If a large number of orders or several large orders do not
occur or are deferred or delayed, our revenues in a quarter could be
substantially reduced. This risk is heightened by the significant investment and
executive level decision making typically involved in our end-user customers'
decisions to license our products. Since a large portion of our operating
expenses, including rent and salaries, is fixed and difficult to reduce or
modify, our business, financial condition or results of operations could be
materially adversely affected if revenues do not meet our expectations. Because
of our early stage of development and limited number of products, changes in
pricing policies and the timing of the development, announcement and sale of new
or upgraded versions of our products are some of the additional factors that
could cause our revenues and operating results to vary significantly from
quarter to quarter..
6. We may have difficulties managing our expanding operations, multiple
technologies and technological change, which could harm our future product
demand and may reduce our chances of achieving profitability
Our future performance will depend, in part, on our ability to manage our growth
effectively. To that end, we will have to succeed in implementing the following
events, among others:
o develop our operating, administrative, and financial and accounting
systems and controls;
o improve coordination among our engineering, accounting, finance,
marketing and operations personnel;
o enhance our management information systems capabilities; and
o hire and train additional qualified personnel.
If we cannot accomplish these tasks, we will diminish our chances of achieving
profitability. Future versions of hardware and software platforms based upon new
technologies and the emergence of new industry standards could render our
products obsolete. The market for communication software is characterized by:
o rapid technological change;
o frequent new product introductions;
o changes in customer requirements; and
o evolving industry standards.
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Our products are designed to work on a variety of hardware and software
platforms used by our customers. However, our software may not operate correctly
on evolving versions of hardware and software platforms, programming languages,
database environments and other systems that our customers use. For example, the
server component of the current version of our products runs on the Windows NT
operating system from Microsoft. If we cannot successfully develop products in
response to a change in customer demands, our business could suffer.
Also, we must constantly modify and improve our products to keep pace with
changes made to these platforms and to database systems and other back-office
applications and Internet-related applications. This may result in uncertainty
relating to the timing and nature of new product announcements, introductions or
modifications, which may cause confusion in the market and harm our business. If
we fail to modify or improve our products in response to evolving industry
standards, our products could rapidly become obsolete, which would harm our
business.
7. Our prospects for obtaining additional financing, if required, are uncertain
and failure to obtain needed financing could affect our ability to pursue future
growth.
We may need to raise additional funds to develop or enhance our products,
services or strategic alliances, to fund expansion, to successfully implement
our growth strategy, to respond to changing business conditions and competitive
pressures or to acquire complementary products, opportunities, businesses or
technologies. We do not have a long enough operating history to know with
certainty whether our existing cash, or if cash generated from operations, or
cash from the sale of licenses or received from strategic partners, or from
royalties will be sufficient to finance our anticipated growth. Additional
financing may not be available on terms that are acceptable to us. If we raise
additional funds through the issuance of equity or convertible debt securities,
the percentage ownership of our stockholders would be reduced and these
securities might have rights, preferences and privileges senior to those of our
current stockholders. If adequate funds are not available on acceptable terms,
our ability to fund our expansion, take advantage of unanticipated
opportunities, develop or enhance our products and services would be impaired.
Obtaining additional financing will be subject to a number of factors, including
market conditions, our operating performance and investor sentiment. These
factors may make the timing, amount, terms and conditions of additional
financing unattractive to us. If we are unable to raise additional capital, our
growth could be impeded.
8. Competition could reduce our market share, decrease our revenue and cause
pricing pressures which may lessen our competitive pricing advantage.
The market for our services has been extremely competitive. The market that we
are competing in falls into several categories:
1. VoIP Gateway products
2. VoIP Gatekeeper products
3. VoIP Billing products
4. Enhanced IP Services
5. Transmission Services
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Since we are offering a totally integrated solution that encompasses all of
these markets, it creates a highly competitive environment for the Company as we
must differentiate our product against those that specialize in either one or
more of the above mentioned areas.
The primary competitive factors that will determine success in these markets
are:
a) Quality of Service
b) The ability to meet and anticipate customer needs through multiple service
offerings
c) Responsive customer support services
d) Price
Many companies offer products and services like ours, and many of these
companies have a substantial presence in this market. Future competition could
come from a variety of companies in the Internet equipment and service arena,
traditional network equipment providers and the telecommunications service
industry. These industries include companies who have greater resources and
larger subscriber bases than we have and which have been in operation for many
years.
Internet companies such as Net2Phone, NetSpeak, Vocaltec, Clarent and Lucent all
currently offer certain portions of the complete communications solution
provided by us and through ongoing consolidation and partnerships, may be able
to provide the total solution within a relatively short period of time.
Internet service companies such as ITXC, ViP Calling, RSL Communications, USA
Global Link, iPASS and GRIC have all established global IP-based networks which
are rapidly expanding in terms of traffic volumes and coverage. By partnering
with some of the larger equipment providers such as Vocaltec, Clarent and Cisco,
they are positioned to become dominant influences on the Internet services
landscape.
Networking companies such as Cisco (our hardware partner in their "Partner
Program"), Motorola, Nortel, Siemens, Ericsson and Nokia are able to build upon
their existing large base of customers, traditionally in the Telco market, by
offering products that can be easily added to existing infrastructures and
switching networks in the forms of IP upgrades. Additionally, Motorola,
Ericsson, Qualcomm and Nokia are focusing on the emergence of wireless IP
applications, which is projected to be a significant part of the 3rd generation
("3G") IP services. We are not currently addressing wireless applications, but
will be involved in some forms, such as messaging, voice mail, and e-mail access
through wireless applications, within the next six months.
Traditional telecommunications carriers such as AT&T, Sprint, MCI, Frontier, USA
West, Deutsche Telekom, and Qwest Communications, as well as other major
companies such as Motorola and Intel, have all entered or plan to enter the
market for carrying voice over the Internet. are all in the process of
implementing strategies to offer enhanced Internet services including VoIP and
Unified Messaging. Due to their extensive network infrastructure, specifically
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in the area of IP bandwidth, and their large traffic base, they are extremely
well positioned to obtain the technologies they need either through acquisition
or partnering. These carriers will be the driving force behind the growing trend
towards consolidation within the industry since they represent such a major
portion of the telecommunications market and have substantially greater
financial, technical and marketing resources than we do. We may not be able to
compete successfully in this market.
These and other competitors may be able to bundle their services and products
that are not offered by us, which could place us at a significant competitive
disadvantage. Many of our competitors enjoy economies of scale that can result
in lower cost structure for transmission and related costs, which could cause
significant pricing pressure within the industry. When compounded with
decreasing rates for international termination and the subsequent increased
price competition, this may result in a further reduction of prices, profit
margins and market share.
All of the current product offerings in the market place, such as VocalTec
Communications' Internet Phone, QuarterDeck's WebPhone and Microsoft's
NetMeeting, are intended for the end-user, and in the case of NetMeeting, is an
interface to our ViP product. Our market is the service provider, Telco, or
corporation, and not the end-user. In addition, a number of large
telecommunications providers and equipment manufacturers, such as Alcatel,
Cisco, Lucent, and Northern Telecom, have announced that they intend to offer
similar products. We expect these products to allow live voice communications
over the Internet between parties using a personal computer and a telephone and
between two parties using telephones. Cisco Systems has also taken further steps
by recently acquiring companies that produce devices that help Internet service
providers carry voice over the Internet while maintaining traditional phone
usage and infrastructure. Other competitors of ours, such as ICG Communications,
IPVoice.com, ITXC, RSL Communications (through its Delta Three subsidiary) and
ViP Calling, route voice traffic worldwide over the Internet. Our success is
based on our ability to provide discounted domestic and international long
distance services by taking advantage of cost savings achieved by carrying voice
traffic over the Internet, as compared to carrying calls over long distance
networks, such as those owned by AT&T, Sprint and MCI. In recent years, the
price of long distance calls has fallen. In response, we have lowered the price
of our service offerings. The price of long distance calls may decline to a
point where we no longer have a price advantage over these traditional long
distance services. We would then have to rely on factors other than price to
differentiate our product and service offerings, which we may not be able to do.
The market for our software products is highly competitive and, because there
are relatively low barriers to entry in the software market, we expect
competition to increase significantly in the future. In addition, because our
industry is new and evolving and characterized by rapid technological change, it
is difficult for us to predict whether, when and by whom new competing
technologies or new competitors may be introduced into our markets. Currently,
our competition comes from several different market segments, including computer
telephony platform developers, computer telephony applications software
developers and telecommunications equipment vendors. We cannot assure you that
we will be able to compete effectively against current and future competitors.
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In addition, increased competition or other competitive pressures may result in
price reductions, reduced margins or loss of market share, any of which could
have a material adverse effect on our business, financial condition or results
of operations Many of our current and potential competitors have longer
operating histories, significantly greater financial, technical, marketing,
customer service and other resources, greater name recognition and a larger
installed base of customers than we do. As a result, these competitors may be
able to respond to new or emerging technologies and changes in customer
requirements faster and more effectively than we can, or to devote greater
resources to the development, promotion and sale of products than we can.
Current and potential competitors have established, and may in the future
establish, cooperative relationships among themselves or with third parties,
including mergers or acquisitions, to increase the ability of their products to
address the needs of our current or prospective end-user customers. If these
competitors were to acquire significant market share, it could have a material
adverse effect on our business, financial condition or results of operations.
See "Business--Competitive Analysis".
9. We depend on our international operations, which subject us to unpredictable
risks from regulatory, financial, operational and political situations, as well
as fluctuations in the value of foreign currencies, which in itself could result
in losses.
As of September 30, 1999, 100% of our customers were based outside of the United
States, generating 100% of our revenues during the twelve months ended on that
date. A significant component of our strategy is to continue to expand
internationally. We cannot assure you that we will be successful in expanding
into additional international markets. In addition to the uncertainty regarding
our ability to generate revenue from foreign operations and expand our
international presence, there are certain risks inherent in doing business on an
international basis, including:
o changing regulatory requirements;
o increased bad debt and subscription fraud;
o legal uncertainty regarding liability, tariffs and other trade barriers;
o political instability; and
o potentially adverse tax consequences.
o economic and political instability;
o unexpected changes in foreign regulatory requirements and laws;
o tariffs and other trade barriers;
o timing, cost and potential difficulty of adapting our software products
to the local language in those foreign countries that do not use the
alphabet that English uses, such as Japan, Korea,China, Russia, and
in the Middle East;
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o lack of acceptance of our products in foreign countries;
o longer sales cycles and accounts receivable payment cycles;
o restrictions on the repatriation of funds.
We cannot assure you that one or more of these factors will not materially
adversely affect the growth of our business or our customer base.
The expansion of our international operations will require significant
management attention and financial resources to establish foreign
distribution/sales channels, and hire additional personnel. To date, our
products have been licensed outside North America primarily in Latin America,
the Middle East and Asia. The United States installations are for the support of
other countries at this time. Our Los Angeles Gateway will initiate a revenue
stream within three months. We are currently expanding our marketing efforts
into Europe and intend to continue to expand our international operations and
enter additional international markets. Revenues from international expansion
may be inadequate to cover the expenses of international expansion.
Our international revenues are generally denominated in U.S. Dollars, but our
international expenses are generally denominated in local foreign currencies.
Although foreign currency translation gains and losses have been immaterial to
date, fluctuations in exchange rates between the U.S. Dollar and other
currencies could have a material adverse effect on our business, financial
condition or results of operations, and particularly on our operating margins.
To date, we have not sought to hedge the risks associated with fluctuations in
exchange rates, but we may undertake to do so in the future. Any hedging
techniques we implement in the future may not be successful. Exchange rate
fluctuations could also make our products more expensive than competitive
products not subject to these fluctuations, which could adversely affect our
revenues and profitability in international markets.
10. All of the telephone calls made by our customers are connected through local
telephone companies and, at least in part, through leased networks that may
become unavailable.
We are not a local telephone company or a registered local exchange carrier.
Accordingly, we must route parts of some domestic and international calls made
by our customers over leased transmission facilities. Further, because our
network does not extend to homes or businesses, we must route calls through a
local telephone company to reach our network and, ultimately, to reach their
final destinations.
In many of the foreign jurisdictions in which we conduct or plan to conduct
business, the primary provider of significant intra-national transmission
facilities is the national telephone company. Accordingly, our partners or
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customers in those foreign jurisdictions may have to lease transmission capacity
at artificially high rates from a monopolistic provider and, consequently, they
may not be able to generate a profit on those calls. In addition, national
telephone companies may not be required by law to lease necessary transmission
lines to them or, if applicable law requires national telephone companies to
lease transmission facilities to them, they may encounter delays in negotiating
leases and interconnection agreements and commencing operations. Additionally,
disputes may result with respect to pricing terms and billing.
In the United States, the providers of local telephone service are generally the
incumbent local telephone companies, including the regional Bell operating
companies. The permitted pricing of local transmission facilities that we lease
in the United States is subject to uncertainties. The Federal Communications
Commission has issued an order requiring incumbent local telephone companies to
price those facilities at total element long-run incremental cost, and the
United States Supreme Court recently upheld the FCC's jurisdiction to set a
pricing standard for local transmission facilities provided to competitors.
However, the incumbent local telephone companies can be expected to bring
further legal challenges to the FCC's total element long-run incremental cost
standard and, if they succeed, the result may be to increase the cost of
incumbent local transmission facilities obtained by us.
11. We may not be able to hire and retain the personnel we need to sustain our
business, and the loss of our Chief Executive Officer and President could harm
our business.
We depend on the continued services of our executive officers and other key
personnel. We have employment agreements with Clifford Y. Pierce, our President
and CFO, and Chairman of the Board of Directors; Paul Callihoo, our Executive
Vice President of International Marketing , COO, and Director; and Nigel Gray,
our Vice President of Technical and Business Development and Director; We need
to attract and retain other highly-skilled technical and managerial personnel
for whom there is intense competition. If we are unable to attract and retain
qualified technical and managerial personnel, we may never achieve
profitability. We have applied for key man life insurance policies on the
current and prospective officers stated above in the amount of $1.0 million
each, which policies should be effective shortly after the effective date of
this prospectus. The integration of our new management personnel as we expand,
including our hiring of a new CEO, a new CFO (Mr. Pierce will relinquish that
position), a new COO (Mr. Callihoo may concentrate on International Marketing),
a new Director of Technical Development, and a new Director of Sales, as well as
new Executive Vice Presidents and Vice Presidents, as needed, into our
management team may interfere with our operations.
We have recently hired a number of new officers, including our Executive Vice
President of International Marketing and Chief Operating Officer, Paul Callihoo,
who joined us in June of 1999. Our future success depends to a significant
degree on the skills, experience and efforts of our senior management. In
particular, we depend upon the continued services Clifford Pierce, our President
and founder. The loss of the services of any of these individuals could harm our
business and operations. If any of our key employees left or was seriously
injured and unable to work and we were unable to find a qualified replacement,
our business could be harmed. We intend to at least triple our sales, marketing,
engineering, professional services and product management personnel over the
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next 12 months. Competition for these individuals is intense, and we may not be
able to attract, assimilate or retain highly qualified personnel in the future.
Our business cannot continue to grow if we cannot attract qualified personnel.
Our failure to attract and retain the highly trained personnel that are integral
to our product development and professional services group, which is the group
responsible for implementation and customization of, and technical support for,
our products and services, may limit the rate at which we can develop and
install new products or product enhancements, which would harm our business. We
will need to increase our staff to support new customers and the expanding needs
of our existing customers, without compromising the quality of our customer
service. Since our inception, no full time employees have left or have been
terminated, although we expect to lose employees in the future. Hiring qualified
professional services personnel, as well as sales, marketing, administrative and
research and development personnel, is very competitive in our industry,
particularly in Miami and Argentina, where the Company is headquartered, due to
the limited number of people available with the necessary technical skills.
Our financial success depends to a large degree on the ability of our resellers
and our direct sales force to increase sales to a level required to adequately
fund marketing and product development activities. Therefore, our ability to
increase revenues in the future depends considerably upon our success in
recruiting, training and retaining additional resellers direct sales personnel
and the success of the resellers and direct sales force. Also, it may take a new
salesperson a number of months before he or she becomes a productive member of
our sales force. Our business will be harmed if we fail to hire or retain
qualified sales personnel, or if newly hired salespeople fail to develop the
necessary sales skills or develop these skills more slowly than we anticipate.
See "Business--Employees".
12. Our business depends on the acceptance of our products and services, and in
part on our ability to maintain and improve our current products and develop new
products, and it is uncertain whether the market will accept our products and
services.
Our total revenue is $6,386 for the twelve months ended June 30, 1999. We are
not certain that our target customers will widely adopt and deploy our products
and services. Our future financial performance will depend on the successful
development, introduction and customer acceptance of new and enhanced versions
of our products and services. In the future, we may not be successful in
marketing our products and services or any new or enhanced products.
To be competitive, we must develop and introduce on a timely basis new products
and product enhancements. Any failure to do so could harm our business. If we
experience product delays in the future, we may face:
o customer dissatisfaction;
o cancellation of orders and license agreements;
o negative publicity;
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o loss of revenues;
o slower market acceptance; and
o legal action by customers against us.
In the future, our efforts to remedy this situation may not be successful and we
may lose customers as a result. Delays in bringing to market new products or
their enhancements, or the existence of defects in new products or their
enhancements, could be exploited by our competitors. If we were to lose market
share as a result of lapses in our product management, our business would
suffer. We believe that our future business prospects depend in large part on
our ability to maintain and improve our current products and to develop new
products on a timely basis. We are continuing to update the ViP software as we
deploy more gateways. At this time, there are no identified new releases
scheduled.. Our products will have to achieve market acceptance, maintain
technological competitiveness and meet an expanding range of end-user customer
requirements. As a result of the complexities inherent in our products, major
new products and product enhancements require long development and testing
periods. We may not be successful in developing and marketing, on a timely and
cost effective basis, product enhancements or new products that respond to
technological change, evolving industry standards or end-user customer
requirements. We may also experience difficulties that could delay or prevent
the successful development, introduction or marketing of product enhancements,
and our new products and product enhancements may not achieve market acceptance.
Significant delays in the general availability of new releases of our products
or significant problems in the installation or implementation of new releases of
our products could have a material adverse effect on our business, financial
condition or results of operations.
13. Our Golden Access Network Control Center could fail and the Internet
connections could be inadequate.
Should the Golden Access Network Control Center system fail, a temporary
disruption to services would result. The network's design is redundant to ensure
that the outage of any one system does not disrupt the overall operation of the
network and its users. We are establishing a multi-node Network Control Center
with facilities in Miami, Los Angeles and New York, which offers redundant
operations to keep the network operational. If any of the individual ViP
Gateways experience an outage, the Network Control Center will automatically
re-route traffic destined for that location to an alternate Gateway for
termination, thus providing a seamless transition, totally invisible to the
customer. However, since the inherent nature of the public Internet relies on
sufficient bandwidth and capacity to support a viable Voice over IP service,
such as exists in North America, Western Europe and some parts of Asia, the
quality of service that will be offered by Golden Access in locations where the
infrastructure for Internet is quite poor, as in many developing countries, this
may result in serious quality and access issues, therefore reducing our chances
of successfully deploying the ViP Gateway system in those markets as rapidly as
we would otherwise plan.
14. A decline in market acceptance for Microsoft Corporation technologies on
which our products rely could have a material adverse effect on us.
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ViP currently runs only on Microsoft Windows NT-Registered Trademark-servers. In
addition, our products use other Microsoft Corporation technologies, including
Microsoft Exchange Server-Registered Trademark- and Microsoft
SQLServer-Registered Trademark-. A decline in market acceptance for Microsoft
technologies or the increased acceptance of other server technologies could
cause us to incur significant development costs and could have a material
adverse effect on our ability to market our current products. Although we
believe that Microsoft technologies will continue to be widely used by
businesses, we cannot assure you that businesses will adopt these technologies
as anticipated or will not in the future migrate to other computing technologies
that we do not currently support. In addition, our products and technologies
must continue to be compatible with new developments in Microsoft technologies.
15.Technical problems, damage to or failure of either our internal or our
outsource computer and communications systems could interrupt our service,
which could result in reductions in, or terminations of, our services.
The success of our service depends on the efficient and uninterrupted operation
of our own and outsource computer and communications hardware and software
systems. These systems and operations are vulnerable to damage or interruption
from human error, natural disasters, telecommunications failures, power loss,
break-ins, sabotage, computer viruses, intentional acts of vandalism and similar
adverse events. We will be entering into an Internet-hosting agreement with
UUNET to maintain our Internet connections to the Company's operation center.
Our operations depend on their ability to maintain the Internet connectivity to
our operations center free of interruption. UUNET does not guarantee that our
Internet access will be uninterrupted, error-free or secure. We have no formal
disaster recovery plan in the event of damage or interruption, and our insurance
policies may not adequately compensate us for any losses that we may incur. Any
system failure that causes an interruption in our service or a decrease in
responsiveness could harm our relationships with our customers and result in
reduced revenues. Our success depends on our ability to provide efficient and
uninterrupted, high-quality services. The occurrence of any or all of these
events could hurt our reputation and cause us to lose customers. See
"Business--Products and Services ".
16. If third parties copy or otherwise obtain and use our technology without
Authorization, we may not be able to protect our propriety rights or from
unauthorized transactions.
We regard our software products as proprietary. In an effort to protect our
proprietary rights, we rely primarily on a combination of copyright, trademark
and trade secret laws, as well as licensing and other agreements with strategic
partners, resellers, consultants, suppliers, end-user customers, and employee
and third-party non-disclosure agreements. These laws and agreements provide
only limited protection of our proprietary rights. In addition, we have not
signed agreements containing these types of protective provisions in every case,
and the contractual provisions that are in place and the protection they provide
vary and may not provide us with adequate protection in all circumstances.
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Although we have recently filed trademarks on our "In and Out" software, a time
management (for service businesses) and billing package, we currently have no
patents or registered copyrights. Because our means of protecting our
proprietary rights may not be adequate, it may be possible for a third party to
copy or otherwise obtain and use our technology without authorization. A third
party could also develop similar technology independently. In addition, the laws
of some countries in which we sell our products do not protect our software and
intellectual property rights to the same extent as the laws of the United
States. Unauthorized copying, use or reverse engineering of our products could
materially adversely affect our business, results of operations or financial
condition. Furthermore, the validity, enforceability and scope of protection of
intellectual property in Internet-related industries is uncertain and still
evolving. The laws of some foreign countries are uncertain or do not protect
intellectual property rights to the same extent as do the laws of the United
States.
We currently have a registered trademark, ViP, and pending trademark
applications for our "GOLDENACCESS.COM" logo and design". However, none of our
trademarks on application is registered outside of the United States, nor do we
have any trademark applications pending outside of the United States.
Moreover, despite any precautions that we have taken:
o software "pirates" often cause irreparable harm in spite of federal laws, and
effective trademark, copyright and trade secret protection may be unavailable
or limited in foreign countries;
o common law trademark rights of our competitors based upon state or foreign
laws may precede the federal registration of our marks; and
o policing unauthorized use of our products and trademarks is difficult,
expensive and time-consuming, and we may be unable to determine the extent of
this unauthorized use.
We license technology that is embedded in our products from others. If one or
more of these licenses terminates or cannot be renewed on satisfactory terms, we
would have to modify the affected products to use alternative technology or
eliminate the affected product function, either of which could have a material
adverse effect on us.
We may be the victim of fraud or theft of service. From time to time, callers
have obtained our services without rendering payment by unlawfully using our
access numbers and personal identification numbers. We attempt to manage these
theft and fraud risks through our internal controls and our monitoring and
blocking systems. If these efforts are not successful, the theft of our services
may cause our revenue to decline significantly.
17. Defending against intellectual property infringement claims could be
expensive and could disrupt our business.
We cannot be certain that our products do not or will not infringe upon valid
patents, trademarks, copyrights or other intellectual property rights held by
third parties. We may be subject to legal proceedings and claims from time to
time relating to the intellectual property of others in the ordinary course of
our business. We may incur substantial expenses in defending against these
third-party infringement claims, regardless of their merit. Successful
infringement claims against us may result in substantial monetary liability or
may materially disrupt the conduct of our business. A third party could claim
that our technology infringes its proprietary rights. As the number of software
products in our target markets increases and the functionality of these products
overlap, we believe that software developers may face infringement claims. For
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example, various patent rights have been asserted against interfaces between PBX
hardware and computer network systems. Although we believe that our products do
not infringe any of these patents because, among other reasons, they are based
on open standards published by the International Telecommunciations Union (ITU),
however, if these patents were interpreted broadly, claims of infringement of
these patents could have a material adverse affect on us. Infringement claims,
even if without merit, can be time consuming and expensive to defend. A third
party asserting infringement claims against us or our customers with respect to
our current or future products may require us to enter into costly royalty
arrangements or litigation, or otherwise materially adversely affect us.
Substantial litigation regarding intellectual property rights exists in our
industry. We expect that software in our industry may be increasingly subject to
third-party infringement claims as the number of competitors grows and the
functionality of products in different industry segments overlaps. Third parties
may currently have, or may eventually be issued, patents that our products or
technology infringe. Any of these third parties might make a claim of
infringement against us. Many of our software license agreements require us to
indemnify our customers from any claim or finding of intellectual property
infringement. Any litigation, brought by us or others, could result in the
expenditure of significant financial resources and the diversion of management's
time and efforts. In addition, litigation in which we are accused of
infringement might cause product shipment delays, require us to develop
non-infringing technology or require us to enter into royalty or license
agreements, which might not be available on acceptable terms, or at all. If a
successful claim of infringement were made against us and we could not develop
non-infringing technology or license the infringed or similar technology on a
timely and cost-effective basis, our business could be significantly harmed. See
"Business--Product - Trademark - Patent."
18.We may pursue acquisitions that by their nature present risks and that may
not be successful.
In the future we may pursue acquisitions to diversify our product offerings and
customer base or for other strategic purposes. We have no prior history of
making acquisitions and we cannot assure you that any future acquisitions will
be successful. The following are some of the risks associated with acquisitions
that could have a material adverse effect on our business, financial condition
or results of operations:
o We cannot ensure that any acquired businesses will achieve anticipated
revenues, earnings or cash flow.
o We may be unable to integrate acquired businesses successfully and realize
anticipated economic, operational and other benefits in a timely manner,
particularly if we acquire a business in a market in which we have limited or
no current expertise, or with a corporate culture different from our own. If
we are unable to integrate acquired businesses successfully, we could incur
substantial costs and delays or other operational, technical or financial
problems.
o Acquisitions could disrupt our ongoing business, distract management, divert
resources and make it difficult to maintain our current business standards,
controls and procedures.
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o We may finance future acquisitions by issuing common stock for some or all of
the purchase price. This could dilute the ownership interests of our
stockholders. We may also incur additional debt or be required to recognize
amortization expense related to goodwill and other intangible assets
purchased in future acquisitions.
o We would be competing with other firms, many of which have greater financial
and other resources, to acquire attractive companies. We believe this
competition will increase, making it more difficult to acquire suitable
companies on acceptable terms.
19.If we fail to build skills necessary to sell our services, we will lose
revenue opportunities and our sales will suffer.
The skills necessary to market and sell our services are different than those
relating to our software products. We license our software products for a fixed
fee based on the number of concurrent users and the optional applications
purchased. We license ViP based on a per port basis. Our sales force sells both
our software products and ViP. Because different skills are necessary to sell
ViP versus our software products, our sales and marketing groups may not be able
to maintain or increase the level of sales of either ViP or our software
products.
20.Our products could have defects for which we are potentially liable and which
could result in loss of revenue, increased costs or loss of our credibility or
delay in acceptance of our products in the market.
Our license agreements with our end-user customers typically contain provisions
designed to limit our exposure to potential product liability and some contract
claims. However, not all of these agreements contain these types of provisions
and, where present, these provisions vary as to their terms and may not be
effective under the laws of some jurisdictions. There could be claims relating
to damages to our customers' internal systems. A product liability, warranty, or
other claim, whether or not successful, could harm our business by increasing
our costs, damaging our reputation and distracting our management. .Such events
could have a material adverse effect on our business, financial condition or
results of operations.
Our products, including components supplied by others, may contain errors or
defects, especially when first introduced or when new versions are released.
Despite internal product testing, we have in the past discovered software errors
in some of our products after their introduction. Errors in new products or
releases could be found after Commencement of commercial shipments, and this
could result in additional development costs, diversion of technical and other
resources from our other development efforts, or the loss of credibility with
current or future end-user customers. This could result in a loss of revenue or
delay in market acceptance of our products, which could have a material adverse
effect upon our business, financial condition or results of operations.
Because our solution consists of our software running on a Windows NT-Registered
Trademark- server and Dialogic digital signal/telephony processing boards, it is
inherently more prone to performance interruptions for our end-user customers
than traditional non-software based products. Performance interruptions at our
end-user customer sites, most of which currently do not have back-up systems,
could affect demand for our products or give rise to claims against us.
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21. If we hire a reseller who fails to market our products and services
effectively or who provides poor customer service, our reputation will suffer
and we could lose customers.
If we hire a reseller who fails to market our products and services effectively,
we could lose market share. Additionally, if a reseller provides poor customer
service, we could lose brand equity. Therefore, we must maintain and hire
additional resellers throughout the world that are capable of providing
high-quality sales and service efforts. If we lose a reseller in a key market,
or if a current or future reseller fails to adequately provide customer support,
our reputation will suffer and sales of our products and services and our
customer base will be substantially diminished.
22. We may not be able to grow our business as planned if we do not maintain
successful relationships with our resellers and continue to recruit and train
additional resellers
Our ability to achieve revenue growth in the future will depend in part on our
success in maintaining successful relationships with our existing and future
resellers and in recruiting and training additional resellers. We rely primarily
on resellers to market and support our products. We are still developing and
refining our reseller distribution network and may be unable to attract
additional resellers with both voice and data expertise that will be able to
market our products effectively and that will be qualified to provide timely and
cost-effective customer support and service. We generally do not have long-term
or exclusive agreements with our resellers, and the loss of specific larger
resellers or a significant number of resellers could materially adversely affect
our business, financial condition or results of operations.
23. Our success depends on our ability to handle a large number of simultaneous
calls through our Gateways, which our systems may not be able to accommodate.
We expect the volume of simultaneous calls to increase significantly as we
expand our operations. Our network hardware and software may not be able to
accommodate this additional volume. If we fail to maintain an appropriate level
of operating performance, or if our service is disrupted, our reputation could
be hurt and we could lose customers.
24. There is a risk that we may have a liability that is not covered by
insurance.
Although we carry general liability insurance, our insurance may not cover
certain potential claims or may not be adequate to indemnify us for all
liability that may be imposed. Any imposition of liability that is not covered
by insurance or is in excess of insurance coverage could have a material adverse
effect on our business, operating results and financial condition.
Risks Related to Our Industry
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25. If the Internet does not continue to grow as a medium for voice
communications, our business will suffer and demand for our products and
services will decline.
The technology that allows voice communications over the Internet is still in
its early stages of development. Historically, the sound quality of Internet
calls was poor. As the industry has grown, sound quality has improved, but the
technology requires further refinement. Additionally, the Internet's capacity
constraints may impede the acceptance of Internet telephony. Callers could
experience delays, errors in transmissions or other interruptions in service.
Making telephone calls over the Internet must also be accepted as an alternative
to traditional telephone service. Because the Internet telephony market is new
and evolving, predicting the size of this market and its growth rate is
difficult. If our market fails to develop, then we will be unable to grow our
customer base and our opportunity for profitability will be harmed.
We sell our products and services primarily to organizations that transmit and
receive large volumes of telephone calls, especially international calls.
Consequently, our future revenues and profits, if any, substantially depend upon
the continued acceptance and use of the Internet, which is evolving as a medium
of communication. Rapid growth in the use of IP telephony is a recent phenomenon
and may not continue. Many of our customers have business models that are based
on the continued growth of the Internet. As a result, a broad base of
enterprises that use IP telephony as a primary means of communication may not
develop or be maintained. In addition, the market may not accept recently
introduced products and services that process IP calls, including our products
and services.
Moreover, companies that have already invested significant resources in other
methods of communications with customers, such as call centers, may be reluctant
to adopt a new strategy that may limit or compete with their existing
investments. If businesses do not continue to accept the Internet as a medium of
communication, our business would suffer.
26. Governmental regulations regarding the Internet may be passed, which could
impede our business.
Future regulation of the Internet may slow its growth, resulting in decreased
demand for our products and services and increased costs of doing business.
To date, governmental regulations have not materially restricted use of the
Internet in our market. However, the legal and regulatory environment that
pertains to the Internet is uncertain and may change. New regulations could
increase our costs of doing business and prevent us from delivering our products
and services over the Internet. This could delay growth in demand for our
products and services and limit the growth of our revenue.
In addition to new regulations being adopted, existing laws may be applied to
the Internet. See "Business--Government Regulation." New and existing laws may
cover issues that include:
o sales and other taxes;
o access charges;
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o user privacy;
o pricing controls;
o characteristics and quality of products and services;
o consumer protection;
o contributions to the universal service fund, an FCC-administered fund for
the support of local telephone service in rural and high cost areas;
o cross-border commerce;
o copyright, trademark and patent infringement; and
o other claims based on the nature and content of Internet materials.
In September 1998, two regional Bell operating companies advised Internet
telephony providers that these companies would impose access charges on Internet
telephony traffic. One of these operating companies also petitioned the FCC for
a declaratory ruling that providers of interstate Internet telephony must pay
federal access charges, and has petitioned the public utilities commissions of
Nebraska and Colorado for similar rulings concerning payment of access charges
for intrastate Internet telephone calls. The outcome of these proceedings is
uncertain. If these states decide that access charges may be levied against
Internet telephony providers, we would have to pay money for access in those
states. If additional state utility commissions make similar rulings, we may not
be able to operate profitably in any state that assesses access charges against
us. Future regulation of the Internet may slow its growth, resulting in
decreased demand for our products and services and increased costs of doing
business. Due to the increasing popularity and use of the Internet, it is
possible that state, federal and foreign regulators could adopt laws and
regulations that impose additional burdens on those companies that conduct
business online. These laws and regulations could discourage communication by IP
or other Web-based communications, which could reduce demand for our products
and services.
The growth and development of the market for online services may prompt calls
for more stringent consumer protection laws or laws that may inhibit the use of
Internet-based communications or the information contained in these
communications. The adoption of any additional laws or regulations may decrease
the expansion of the Internet. A decline in the growth of the Internet,
particularly as it relates to online communication, could decrease demand for
our products and services and increase our costs of doing business, or otherwise
harm our business. Our costs could increase and our growth could be harmed by
any new legislation or regulation, the application of laws and regulations from
jurisdictions whose laws do not currently apply to our business, or the
application of existing laws and regulations to the Internet and other online
services.
27. Year 2000 problems may disrupt our operations.
Many currently installed computer systems and software products are coded to
accept or recognize only two digit entries in the date code field. These systems
and software products will need to accept four digit entries to distinguish 21st
century dates from 20th century dates. As a result, computer systems and/or
software used by many companies and governmental agencies may need to be
upgraded to comply with these Year 2000 requirements or risk system failure or
miscalculations causing disruptions of normal business activities.
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Any failure of our material systems, our customers' material systems or the
Internet to be Year 2000 compliant would have material adverse consequences for
us. We have not completed all operational tests on our internal systems.
Accordingly, we are unable to predict to what extent our business may be
affected if our software, the systems that operate in conjunction with our
software or our internal systems experience a material Year 2000 failure.
In the course of our business, we test and evaluate our software products for
Year 2000 compliance. Based on this testing and evaluation, we believe that the
current versions of our products are capable of adequately distinguishing 21st
century dates from 20th century dates. We have warranted that all of our current
products are Year 2000 compliant. If any of our end-user customers experience
Year 2000 problems as a result of their use of our products, those end-user
customers could assert claims against us for damages which, if successful, could
materially adversely affect our business, financial condition or results of
operations. In addition, many of our products have third-party technologies
embedded in them, and our products at times are integrated into enterprise
systems involving sophisticated hardware and complex software products. We
cannot adequately evaluate these technologies or products for Year 2000
compliance. Our two material suppliers have not warranted that their products
which could impact the performance of our products are Year 2000 compliant. Our
most reasonably likely worst case scenario is that we could lose current or
potential customers, incur costs related to replacing third party products or
face claims under our warranties, or otherwise, based on Year 2000 problems in
other companies' products, or issues arising from the integration of multiple
products within an overall system, any of which could have a material adverse
effect on our business, financial condition or results of operations. Since we
are in the business of selling software, our risk of facing claims relating to
Year 2000 issues is greater than that of companies in some other industries.
We have also begun to contact key suppliers and intend to contact our key
resellers about their Year 2000 readiness. To date, we are not aware of any
material suppliers or resellers with Year 2000 issues that would materially
affect us. However, we cannot guarantee that the systems of other companies on
which our operations rely will be timely converted or that failure to timely
convert would not have a material adverse effect on us.
We believe that the purchasing patterns of end-user customers and potential
end-user customers may be affected by Year 2000 issues as companies expend
significant resources to correct or upgrade their current software systems for
Year 2000 compliance. These expenditures may reduce the funds available to
license software products such as those we offer. To the extent Year 2000 issues
significantly disrupt decisions to license our products or purchase our
services, our business, financial condition or results of operations could be
materially adversely affected.
28. If our hardware platform becomes unavailable, our costs may increase and our
ability to provide our software and service may diminish.
The hardware platform we utilize is based on the latest industrial grade PC
technology available and integrated with the industry leading Dialogic
DM3/IPLink telephony and IP interfaces. Dialogic Inc., who is a subsidiary of
Intel, with 5% owned by MicroSoft, is one of our strategic marketing and
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engineering partners. Dialogic's Partner Program is used to mutually increase
product sales through joint marketing and development areas. As we sell more ViP
gateways, Dialogic sells more product. Substitution of their hardware could
adversely affect our competitiveness until similar functioning equipment were
available.
29. If we fail to establish and maintain strategic relationships our ability to
increase our sales would suffer.
We currently have strategic relationships with Dialogic, Cisco Systems, Inc.,
Nortel, Inc., Joss Maru Ltd, the Golden Access Group, Inc., Microsoft, and
others. We depend on these relationships to:
o distribute our products to potential customers;
o increase usage of our services;
o build brand awareness; and
o cooperatively market our products and services.
We believe that our success depends, in part, on our ability to develop and
maintain strategic relationships with leading Internet companies and computer
hardware and software companies, as well as key marketing distribution partners.
If any of our strategic relationships are discontinued, sales of our products
and services and our ability to maintain or increase our customer base may be
substantially diminished.
Risks Related to this Registration
30. No prior public market has existed for our shares and an active trading
market may not develop or be sustained.
Before this registration, there has been no public market for our common stock.
We cannot assure you that an active trading market will develop or be sustained
after the effective date of this registration. You may not be able to resell
your shares at or above the price at which the shares initiate trading. The
initial trading price will be determined through negotiations between the market
makers who initiate the trading, and the placement agents and underwriters, to
the extent there are agents or underwriters, and us. See "Distribution"
31. Our stock price is likely to be highly volatile and could drop unexpectedly.
If our stock price is volatile, we may become subject to securities litigation,
which is expensive and could divert our resources.
We have operated as a research and development company, have just recently
generated revenues, have not been profitable, and may not be profitable in the
future, which may reduce the trading price of our common stock. Moreover, if an
active market develops, the trading price of our common stock may fluctuate
widely as a result of a number of factors, many of which are outside our
control. In addition, the stock market has experienced extreme price and volume
fluctuations that have affected the market prices of many technology and
computer software companies, particularly Internet-related companies, and which
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have often been unrelated or disproportionate to the operating performance of
these companies. These broad market fluctuations could adversely affect the
market price of our common stock:
o quarterly variations in our operating results;
o announcements of technical innovations, new products or services by us
or our competitors;
o investor perception of us, the Internet telephony market or the Internet
in general;
o changes in financial estimates by securities analysts; and
o general economic and market conditions.
Declines in the market price of our common stock could also materially adversely
affect employee morale and retention, our access to capital and other aspects of
our business.
In the past, following periods of market volatility in the price of a company's
securities, security holders have instituted class action litigation. Many
companies in our industry have been subject to this type of litigation. If the
market value of our stock experiences adverse fluctuations, and we become
involved in this type of litigation, regardless of the outcome, we could incur
substantial legal costs and our management's attention could be diverted,
causing our business to suffer.
32. Availability of significant amounts of common stock for sale in the future
could adversely affect our stock price.
The availability for future sale, or sales, of a substantial number of shares of
our common stock in the public market or otherwise following the effective date
of this registration could adversely affect the market price for our common
stock. See "Shares Eligible for Future Sale" for information regarding the
number of shares of common stock eligible for public sale after the effective
date. These sales also might make it difficult for us to sell equity securities
in the future at a time and at a price that we deem appropriate. Moreover, the
perception in the public market that our existing stockholders might sell shares
of common stock could depress the market price of the common stock. These sales,
or the perception of these sales, could make it more difficult for us to sell
equity or equity-related securities in the future at a time and price that we
deem appropriate.
All of the option holders for the future exercise of shares of our common stock
have the right to require us to register their shares of common stock with the
Securities and Exchange Commission. In addition, in the future we intend to
register all shares of our common stock that we may issue under our stock option
plans and employee stock purchase plan. Once we register these shares, they can
be freely sold in the public market upon issuance, in some instances subject to
lock-up agreements. See "Stock Options". If these holders cause a large number
of securities to be sold in the public market, the sales could materially and
adversely affect the market price of our common stock. In addition, any of these
sales could impede our ability to raise needed capital. See "Shares Eligible for
Future Sale" and "Distribution".
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33. Our executive officers and directors control us and may make decisions that
you do not consider to be in your best interest.
After the effective date, our executive officers, directors, and their
affiliates will together control approximately 75.6% of the outstanding common
stock, and on a fully diluted basis, 66.6%, not inclusive of options reserved
but not granted. If all reserved options are granted, 54.2%. As a result, these
stockholders, if they act together, will be able to control all matters
requiring approval of a majority of our stockholders, including the election of
directors and significant corporate transactions. This concentration of
ownership may delay, prevent or deter a change in control of our Company, could
deprive our stockholders of an opportunity to receive a premium for their common
stock as part of a sale of its assets and might affect the market price of our
common stock.
34. Antitakeover provisions in our organizational documents and Florida law make
any change in control of us more difficult, may discourage bids at a premium
over the market price and may adversely affect the market price of our stock.
Our certificate of incorporation, our bylaws and Florida law make it difficult
for a third party to acquire us, despite the possible benefit to our
stockholders
Provisions of our certificate of incorporation, our bylaws and Florida law could
make it more difficult for a third party to acquire us, even if doing so would
be beneficial to our stockholders. For example, our articles of incorporation
provides for a classified board of directors, meaning that only approximately
one-third of our directors will be subject to re-election at each annual
stockholder meeting. These provisions could discourage takeover attempts and
could materially adversely affect the price of our stock.. After the effective
date, the board of directors will have the authority to issue up to 1,000,000
shares of preferred stock. Moreover, without any further vote or action on the
part of the stockholders, the board of directors will have the authority to
determine the price, rights, preferences, privileges and restrictions of the
preferred stock. This preferred stock, if issued, might have preference over and
harm the rights of the holders of Common stock. Although the issuance of this
preferred stock will provide us with flexibility in connection with possible
acquisitions and other corporate purposes, this issuance may make it more
difficult for a third party to acquire a majority of our outstanding voting
stock. We currently have no plans to issue preferred stock.
Our certificate of incorporation, bylaws and equity compensation plans include
provisions that may deter an unsolicited offer to purchase us. These provisions,
coupled with the provisions of the Florida General Corporation Law, may delay or
impede a merger, tender offer or proxy contest. These factors may further delay
or prevent a change of control of our Company.
35. The price of our common stock after the effective date may be lower than the
price you pay.
The price of our common stock that will prevail in the market after the
effective date may be higher or lower than the price at which the stock
initiates trading on the effective date. See "Distribution".
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36. We have used our own attorney to draw all the documents with respect to this
prospectus and no separate investors' counsel was retained by us.
We have not retained any independent professionals to review or comment on this
registration or otherwise protect the interest of the investors hereunder.
Although we have retained our own counsel, neither such firm nor any other firm
has made, on behalf of the investors, any independent examination of any factual
matters represented by management herein, and purchasers of the shares should
not rely on the firm so retained with respect to any matters herein described.
37. We have a potential for possible delisting of securities from the Nasdaq
system and there are risks relating to low-priced stocks, which may affect us.
It is currently anticipated that our Common Stock will be eligible for listing
on Nasdaq coincident with or within 90 days of the effective date of this
prospectus. We are also filing applications for listing on at least one regional
stock exchange. To continue to be listed on Nasdaq, however, we must maintain
$2,000,000 in net assets, or a $35,000,000 market capitalization or $500,000 net
income in the latest year or 2 of the last three fiscal years. In addition,
continued inclusion requires two market makers, a minimum bid price of $1.00 per
share, 500,000 shares in the public float with a market value of $1,000,000, and
300 round lot shareholders. The failure to meet these maintenance criteria in
the future may result in the delisting of our securities from Nasdaq, and
trading, if any, in our securities would thereafter be conducted on the OTC
Bulletin Board, which is owned by Nasdaq. As a result of such delisting, an
investor could find it more difficult to dispose of our securities, and our
market value may fluctuate widely, as is the case with many OTCBB securities.
If the Common Stock were to become delisted from trading on Nasdaq, and any
other regional exchange, and the trading price of the Common Stock were to fall
below $5.00 per share on the date our securities were delisted, trading in such
securities would also be subject to the requirements of certain rules
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which require additional disclosure by broker-dealers in connection with
any trades involving a stock defined as a penny stock (generally, any
non-Nasdaq, non-exchange listed equity security that has a market price of less
than $5.00 per share, subject to certain exceptions). For these types of
transactions, the broker-dealer must make a special suitability determination
for the purchaser and have received the purchaser's written consent to the
transaction prior to sale. The additional burdens imposed upon broker-dealers by
such requirements may discourage broker-dealers from effecting transactions in
our securities, which could severely limit the market price and liquidity of
such securities and the ability of purchasers in this offering to sell their
securities in the secondary market. The foregoing penny stock restrictions will
not apply to our securities if such securities are listed on a regional exchange
and have certain price and buying information provided on a current and
continuing basis or meet certain minimum net tangible assets or average revenue
criteria. Otherwise we will remain subject to Section 15(b)(6) of the Exchange
Act governing these penny stock restrictions. If our securities were subject to
the existing rules on penny stocks, the market liquidity for our securities
could be adversely affected.
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FORWARD-LOOKING STATEMENTS
This prospectus contains "forward-looking statements." These forward-looking
statements include, without limitation, statements about our market opportunity,
strategies, competition, expected activities and expenditures as we pursue our
business plan, and the adequacy of our available cash resources. These
forward-looking statements are not historical facts but rather are based on
current expectations, estimates and projections about our industry, our beliefs,
and our assumptions. Our actual results could differ materially from those
expressed or implied by these forward-looking statements as a result of various
factors, including the risk factors described above and elsewhere in this
prospectus.
Words such as "anticipates", "expects", "intends", "plans", "believes", "seeks"
and "estimates", and variations of these words and similar expressions, are
intended to identify forward-looking statements. These statements are not
guarantees of future performance and are subject to risks, uncertainties and
other factors, some of which are beyond our control, are difficult to predict
and could cause actual results to differ materially from those expressed or
forecasted in the forward-looking statements. These risks and uncertainties
include those described in "Risk Factors" and elsewhere in this prospectus.
Readers are cautioned not to place undue reliance on these forward-looking
statements, which reflect our management's view only as of the date of this
prospectus. Except as required by law, we undertake no obligation to update any
forward-looking statement, whether as a result of new information, future events
or otherwise.
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THE DISTRIBUTION
CATHTECH GROUP, Inc., a new Florida corporation, ("CTG"), was formed as a
subsidiary of Cardiac Control Systems, Inc., ("CCS") a Delaware Corporation, to
acquire GoldenAccess.Com, Inc., a Florida corporation ("GAC"), which was
incorporated in June of 1997, and has been in business continuously since that
time. Pursuant to an Agreement of Merger filed with the Secretary of State of
Florida on August 26, 1999, and Articles of Merger filed with the Florida
Corporation Commission on August 26, 1999, GAC was merged into CTG in a
transaction in which Cardiac Control Systems, Inc, issued 87.5% of the issued
and outstanding Common Stock of CTG to the shareholders of GAC issued and
outstanding Common Stock.
Potter Financial, Inc., as agent, is distributing the 129,300 Shares retained by
CCS to its shareholders of record as of August 26, 1999, and retains
undistributed shares for future sale. Such sales, if sold, shall be made through
NASD members at normal mark ups, mark downs, or brokerage commissions. All
shares, except as provided by applicable laws, will be registered in book entry
format by the transfer agent and registrar, and shareholders shall be credited
their respective shares on the effective date of the Registration Statement of
which this Prospectus is a part or as soon thereafter as is possible.
As a result of the Distribution, we will become a public company with
approximately 700 shareholders and will file and report under the Securities
Exchange Act of 1934. As a reporting company, we intend to have our shares
traded in the public marketplace so as to facilitate and enhance potential
future acquisitions and the valuation for potential future offerings.
Shareholders of Cardiac Control Systems, Inc., that receive Shares will receive
such Shares as a stock dividend. No holder of Cardiac Control Systems, Inc.,
stock will be required to pay cash or other consideration for the shares
received in the Distribution or surrender or exchange Cardiac Control Systems,
Inc., stock in order to receive Shares. The Issuer is paying the expenses of the
Distribution which include legal, accounting, consulting, transfer agent and
filing fees.
We are applying for admission to quotation of the Shares on the Nasdaq SmallCap
Stock Market; however, there can be no assurance that the Shares will be so
listed. See "RISK FACTORS - No Prior Trading Market and "DESCRIPTION OF
SECURITIES - Exchange Listing".
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MANAGEMENT DISCUSSION OF ANALYSIS OF CONDITION AND
RESULTS OF OPERATIONS
We have experienced substantial changes to, and expansion of, our business and
operations since we began our operations in June of 1997. We expect to continue
to expand our business and user base, which will require us to increase our
personnel, develop software, purchase equipment and license content, which will
result in increasing expenses.
The following discussion is based on and should be read in conjunction with the
supplement consolidated financial statements included elsewhere in this
prospectus.
OVERVIEW
We were incorporated June 13, 1997, in the State of Florida. Until May 1999, we
were a development stage company. Our operations consisted primarily of research
and development. In May 1999, we began receiving design and consulting income
relating to radio re-broadcasting via the Internet. In June 1999, we received
our first Internet Telephony income. To date, we have received most of our
revenue from Internet Telephony sales. There was no revenue in 1997 and 1998.
Total sales through September 30, 1999 were $13,612.
We had a net loss of $11,748 for the year ending June 30th, 1998, and a loss of
$31,243 for the year ending June 30th, 1999. The loss in 1999 primarily resulted
from expenditures related to R&D and consulting expenses. Our operations and R&D
expenditures have been primarily funded by our partners and shareholders. We
expect our strategic partners and shareholders to continue to fund our
operations. We may require additional financing from outside sources or from a
public offering.
Between May 1999 and September 1999, the following events occurred:
1. Established a functioning gateway in Beirut, Lebanon
2. Established a functioning gateway in Cali, Columbia
3. Established a functioning gateway in Buenos Aires, Argentina
4. Established a functioning gateway in Cordoba, Argentina
5. Established a functioning gateway in Miami, Fl.
6. Signed agreements in China, Honk Kong, and Los Angeles, Ca.
7. Began to recruit and interview to expand our sales, marketing and
engineering.
9. Completed testing and ran commercial trials of software
10.Ended limited commercialization and initiated full commercialization
11.Rollouts in target countries
12.Purchased assets, trademarks, software, contracts and agreements
13.Merged with CathTech Group, Inc., retained our name.
14.Expanded Board of Directors and Management Team
15.Initiated Hiring of additional key personnel and expanded reselling
network and distributors.
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We believe our investments in Research and Development, and our upcoming
investments in Sales, Marketing and Engineering will be the basis for our
growth. We have plans to increase our efforts in these areas. We anticipate our
operating expenses will increase substantially for the foreseeable future.
Accordingly, we anticipate our revenue to increase. We cannot assure when and if
we will achieve profitability, or that we will be able to sustain profitability.
We believe our operating results are not necessarily meaningful, and you should
not rely on them as an indication of our future performance.
Between October, 1999, and May, 2000, we expect the following to occur:
1. To expand the management team and other personnel to accommodate our
growth.
2. Sign Distributors in Asia, Europe, Eastern Europe, Scandinavia and
Africa.
3. Increase Distributors in South America. 4. Develop strategic alliances
with partners who have existing networks utilizing complimentary
technology/products.
5. Create a global Internet Telephony Network including Asia, US,
Europe and South America.
6. Expand engineering staff in both Miami and Argentina.
7. Roll out software products through the distribution network.
8. Create an image of GoldenAccess.com as a creative, innovative
Internet and Software Company, as well as an Internet Telephony
Company.
9. Create a separate sales staff to market software applications
already developed or being developed
10.Develop a software program for specific Cisco hardware as requested
by Cisco on a non-exclusive basis.
RESEARCH AND DEVELOPMENT
Enhancements to our products in the voice/video sector are scheduled within the
next six months. Costs to complete these projects are estimated at $250,000.
In connection with our other products, although we have budgeted applications at
a cost estimate of $2,750,000, we currently expect all of these costs to be born
directly or indirectly by our clients, strategic partners, or shareholders.
NEED FOR ADDITIONAL PERSONNEL
It is anticipated that the number of employees will triple during the next
twelve months, even with our outsourcing many tasks.
YEAR 2000 READINESS DISCLOSURE
Year 2000 Compliance. The Year 2000 issue involves the potential for system and
processing failures of date-related data resulting from computer-controlled
systems using two digits rather than four to define the applicable year. For
example, computer programs that contain time-sensitive software may recognize a
date using two digits of "00" as the year 1900 rather than the year 2000. This
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could result in system failure or miscalculations causing disruptions of
operations, including, among other things, a temporary inability to process
transactions, send invoices or engage in similar ordinary business activities.
Our State Of Readiness. We have defined Year 2000 compliance as follows:
Information technology time and date data processes, including, but not limited
to, calculating, comparing and sequencing data from, into and between the 20th
and 21st centuries contained in our software and services offered through the
U.S., will function accurately, continuously and without degradation in
performance and without requiring intervention or modification in any manner
that will or could adversely affect the performance of such products or the
delivery of such software and services as applicable at any time.
Our internal systems include both information technology systems and
non-information technology systems. We have initiated an assessment of our
proprietary information technology systems, and expect to complete any
remediation and testing of all information technology systems during 1999. With
respect to information technology systems provided by third-party vendors, we
have sought assurances from such vendors that their technology is Year 2000
compliant. All of our material information technology system vendors have
replied to inquiry letters sent by us stating that they either are Year 2000
compliant or expect to be so in a timely manner.
We believe that our internal software and hardware systems will function
properly with respect to dates in the Year 2000 and thereafter. Nonetheless,
there can be no assurance in this regard until such systems are operational in
the Year 2000. We are in the process of contacting all of our significant
suppliers to determine the extent to which our interface systems are vulnerable
to those third parties' failure to make their own systems Year 2000 compliant.
Additionally, any Year 2000 problems experienced by our advertising customers
could affect the placement of advertisements on our online services.
Accordingly, to the extent the systems of our suppliers and advertising
customers are not fully Year 2000 compliant, there can be no assurance that
potential system interruptions or the cost necessary to update software will not
have a material adverse affect on our business, results of operation or
financial condition.
We are evaluating our non-information technology systems for Year 2000
compliance. We have not, to date, discovered any material Year 2000 issues with
respect to our non-information technology systems.
We are in the process of contacting our material suppliers whose products or
services are sold through us to determine if they are Year 2000 compliant. To
date, all such suppliers have stated that they are, or expect to be, Year 2000
compliant in a timely manner. Our customers are individual Internet users, and,
therefore, we do not have any individual customers who are material to an
evaluation of Year 2000 compliance issues.
The Costs To Address Year 2000 Issues. We have incurred no expenses in
connection with Year 2000 compliance since its formation through September 30,
1999. The additional costs to make any other software or services Year 2000
compliant by December 31, 1999 will be expensed as incurred, but are not
expected to be material.
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We are not currently aware of any material operational issues or costs
associated with preparing our systems for the Year 2000. Nonetheless, we may
experience material unexpected costs caused by undetected errors or defects in
the technology used in our systems or because of the failure of a material
supplier to be Year 2000 compliant.
Risks Associated With Year 2000 Issues. Notwithstanding our Year 2000 compliance
efforts, the failure of a material system or vendor used in our software and
service, or the Internet generally, to be Year 2000 compliant could harm the
operation of our software and services or prevent us from generating advertising
or commerce sales through our software, or have other unforeseen, adverse
consequences to us.
Finally, we are also subject to external Year 2000-related failures or
disruptions that might generally affect industry and commerce, such as utility
or transportation company Year 2000 compliance failures and related service
interruptions. Moreover, participating vendors in our services might experience
substantial slow-downs in business if consumers avoid products and services such
as air travel both before and after January 1, 2000 arising from concerns about
reliability and safety because of the Year 2000 issue. All of these factors
could have a material adverse effect on our business, financial condition and
results of operations.
Contingency Plans. We are engaged in an ongoing Year 2000 assessment and the
development of contingency plans. The results of our Year 2000 simulation
testing and the responses received from third-party vendors and service
providers will be taken into account in determining the nature and extent of any
contingency plans. We have identified our worst-case scenario as the
interruption of our business resulting from Year 2000 failure of the electric
company or our Internet service providers to provide services. We have not yet
completed our worst-case scenario contingency plan. Without a worst-case
scenario contingency plan we may not have enough time to complete remedial
measures and implement contingency planning for the worst-case scenario. We do
plan to complete our contingency plan in accordance with our compliance plan and
under the guidance of our consultants in the end of 1999.
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CAPITALIZATION
This table represents the capitalization of the Company as of September 30,
1999 as adjusted for the merger, and September 30, 1998 proforma as adjusted
for the merger.
Stockholder' Equity: 2,872,500 shares issued: Common Stock: [[$0.001]] par
value
September 30, 1999 September
30, 1998
Additional Paid-in Capital
Accumulated Deficit
Total Stockholder's Equity
Shares Issued and Outstanding 2,872,500 2,872,500
Shares Issued and Outstanding a/o
August 26, 1999, the date of the merger 2,872,500
2,872,500
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BUSINESS
THE INDUSTRY
The rapid progress of digital communications technology, specifically the
Internet, and the continued liberalization of global telecom markets have
created exciting new opportunities, which Golden Access intends to exploit. As
witnessed recently with the explosive growth of the World Wide Web (WWW) and
Internet based technologies in general, the telecommunications industry is ready
for a change in how voice, data and video services are transported and offered
around the world.
Traditionally, service providers have used switched central offices and
dedicated International Private Leased Circuits (IPLCs) to carry voice, data and
video traffic, however, with new computer technology and the emergence of the
public Internet as a viable transport medium, an opportunity exists to by-pass
the current high-overhead, government regulated telecommunications networks in
use around the world today.
IP Telephony
Voice over the Internet has significant appeal, especially to markets where long
distance rates are comparatively high, and therefore, expanded markets should
develop rapidly. IDC (International Data Corp.) forecasted revenues for IP
Telephony in 1999 to be $1.89 billion on 5.84 billion minutes of use, expanding
to $24.39 billion and 151.7 billion minutes in 2002, which would represent 11%
of total call volume worldwide. Some forecasts estimate that IP Telephony could
grow to represent over 20% of the total call volume during this same period.
Telephone companies, big and small, have undertaken their own Internet Telephony
initiatives and will be offering them to consumers. Internet communication takes
advantage of a key economic principle that shared resources are more efficient
and less expensive than dedicated resources. This provides a strong business
model for all service providers and has resulted in an explosion of hardware and
software solutions to meet the demands of this growing market.
Demographics and Demand
The forecasted size of the global international long distance market for a
recent 12-month period was approximately 62 billion minutes and will continue to
grow to over 100 billion minutes in 1999.
The top 15 traffic producing countries by the end of 1999 represent
approximately 70% of the world's total traffic.
The top 15 countries (outside US/Canada) based on traffic volumes from
TeleGeography are : Germany, U.K., France, Italy, Switzerland, Hong Kong,
China, Netherlands, Belgium, Japan, Spain, Mexico, Austria, Singapore, and
Sweden. Some of these are not necessarily good targets for us since the
international rates for countries like the UK and Sweden are so low that
there is no margin opportunity. These can be replaced by other markets such
as Indonesia, Philippines, Thailand, India, Portugal, and the larger Latin
American countries, where the traffic volumes may be lower, but the margins
are significantly higher.
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MARKET TRENDS
The Internet is a collection of computer networks connecting millions of public
and private computers around the world. In its formative stages, the Internet
was used by government agencies and academic institutions to exchange
information, publish research and transfer e-mail. A number of factors,
including the proliferation of communication enabled personal computers, the
availability of intuitive graphical user interface software and the wide
accessibility of an increasingly robust network infrastructure, have combined to
allow users to easily access the Internet and, in turn, have produced rapid
growth in the number of Internet users.
The Emergence of the Web. The graphical multimedia environment of the Internet,
has resulted in the development of the Internet as a new mass communications
medium. The case and speed of publishing, distributing and communicating text,
graphics, audio and video over the Internet has led to a proliferation of
Internet-based services, including chat rooms, online magazines, news feeds,
interactive games and a wealth of educational and entertainment information, as
well as the development of online communities. In addition, by eliminating many
of the costs involved in executing routine commercial transactions, such as
simple banking services and retail purchases, the Internet is rapidly providing
individuals and organizations with a new medium for conducting business.
Growth of the Internet Market. The consumer online and Internet services
industry is now in an early stage of an evolution that is embracing both
consumers and businesses. It is estimated that the today's number of Internet
users exceeds 240 million and could double in the year 2000. This growth is
created by the Internet's ability to provide, in a more appealing, cost and time
effective manner, many of the functions now provided by mail, telephone and
television. It is widely recognized that the evolution of the Internet industry
will have enormous implications for the way individuals communicate, work learn,
and entertain themselves.
Morgan Stanley Research estimates the demand for online and Internet services to
closely follow personal computer ("PC") penetration within the home and office.
PC penetration recently reached a rate of nearly one-third of all United States
households. This penetration rate is similar to the household TV penetration
level in the early 1960s and is expected to increase to a level close to the
current TV household penetration level of 98% within the next 10 to 20 years.
Today, the world is populated by some 200 million computers. It is estimated
that by the year 2002 this figure will increase to 500 million. Combining these
figures with the dramatically expanding use of the Internet, it becomes clear
that we are experiencing a never-before-seen phenomenon: the development of a
pervasive worldwide communication network which transcends borders and which
fundamentally changes the way the world communicates.
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TARGET MARKET
Our target customers in these markets will include Internet Service Providers
(ISP), large corporate networks and telecom service providers that presently or
plan to carry international telecom traffic.
On an average basis, our price will be at least 50% of the lowest off-peak
rate currently offered in most foreign countries. This should attract
significant market share and as rates continue to decrease, we will be
positioned to aggressively compete with these lower rates and ensure
continued growth in market share. Each market will be addressed on an
individual basis due to their unique rate and regulatory structures, but it
is expected that gross margins will range from 30%-55%.
Golden Access perceives the following market sectors for IP Telephony:
1. Internet Service Providers (ISPs) who wish to move from a narrow margin
dial-up market which averages $20/month per subscriber or the corporate
leased-circuit provider to the expansive international telephone market
with minimal investment while using their existing IP and Telephony
infrastructure.
The benefit to the Internet Service Provider is that they are able to enter
an entirely new business, with subscriber's monthly billings raised
exponentially over their existing ISP revenue by becoming an Internet
Telephony Service Provider (ITSP).
2. Telecommunications Service provider, either a facilities-based carrier
or re-seller, who wish to reduce their cost of international transport
by migrating their voice traffic from PSTN to data networks, thus
increasing the efficiency of their network utilization. In markets
where telecommunication services are de-regulated, Golden Access allows
carriers to offer low-priced international long distance service to
counter a competitive environment and offer new value added services to
increase customer satisfaction.
The benefit to the Telecommunications Service Provider is that they are able
to reduce their international termination cost significantly per revenue
minute, thus increasing margins or providing rate flexibility to counter
competitive forces. In addition, they can provide an entire suite of new
products and applications to compliment their existing service offering.
3. The Corporate Service customer with operations in multiple countries will
appreciate the cost savings and reliability offered by combining voice and
data on an existing network. By linking remote PBXs over corporate Wide
Area Networks (WANS), inter-office communications can be sent using Golden
Access. In addition, video conferencing and other value added services
become viable tools in the corporate market.
The benefit to the Corporate Service customer is the reduced long haul
inter-office costs and access to a cost-effective global network for
international long distance. Also, Golden Access's suite of value added
products, can be suited to meet specific requirements of individual
corporations
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THE COMPANY
We were incorporated on June 13, 1997 in the State of Florida. On July 30, 1999
we purchased certain limited assets of various foreign entities, including its
distributor base, contracts, licenses and agreements, software, hardware, and
other equipment. On August 26, 1999, we merged with CathTech Group, Inc., and
retained our name and business.
We are providing and will continue to introduce and market new and innovative
hi-tech products and services in the rapidly expanding multi-billion dollar
Internet Telecommunications and related industries to Internet Service
Providers, corporate networks, Telephone companies, small and large businesses,
governments and institutions, both nationally and internationally. We specialize
in inventive and superior approaches to IP Telephony, offering a complete, fully
integrated solution to IP Telephony systems that includes the IP Telephony
Gateway, Network Management and billing software, as well as access to a Global
Network for call termination. This "one-stop" solution allows our customers and
service providers of any size to establish a service or rapidly launch a revenue
service with minimal investment or infrastructure, without the need to purchase
additional supporting software, hardware and network delivery contracts. This is
the Golden Access breakthrough.
Current operations
We are based in Miami, Florida with offices in Argentina and our organization is
structured into three functional groups: Sales & Marketing, Operations and
Technical Support, and Engineering. We are currently leasing an office facility
of 4500 square feet on a year to year basis for $5,488 per month, plus
applicable sales tax, for administration, technical support, and customer
service. Our offices are located at 6161 Blue Lagoon Drive, suite 190, Miami,
Florida 33126 and the telephone number is (305) 264-2401. The facilities are
adequate for our current needs and suitable additional space, should it be
needed, is expected to be available to accommodate expansion of our operations
on commercially reasonable terms. Our offices in Argentina are in Cordoba, where
we occupy 2000 sq. ft. and pay $700 per month.
What do we do?
The product differentiation, and the technical challenge, is the provision of an
integrated IP Telephony hardware product, software product and global network.
We are unique in offering a total solution to the service provider that will
enable them to deploy a fully operational system quickly and cost-effectively.
Combining this with our inherent capability to rapidly develop leading-edge
applications that are complimentary to the core IP Telephony product will result
in a continual advantage for our customers within the marketplace.
To complement the core IP Telephone system, we are offering other proprietary
software products such as Video/Audio Broadcast, "In and Out" and Interactive
Voicemail. We may have to update customer servers to incorporate these software
products for them to utilize our services. These products and services are
profitable and the cost of the sale is low. Because of the nature of the
products and services, marketing is targeted to different markets, and
distributed through varying channels.
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INTERNATIONAL SERVICES
We will be focusing on establishing a global network of ViP Gateways to carry
international voice traffic at rates much lower than currently being offered by
the traditional telecom carriers. This International Service will be built upon
the deployment of ViP Gateways into countries outside the U.S. through our
network of Distributors and Resellers where we will offer global termination for
the voice traffic of each ViP Gateway. For destinations where we have a Gateway
deployed, the calls will be delivered entirely via the Internet at a significant
cost-savings to the customer. This type of traffic will be referred to as
"On-Net" traffic. For destinations where we do not have a Gateway deployed, the
calls will be routed via the Internet to the Network Control Center(s) in the
U.S. and then delivered over the regular IDD network at competitive rates. This
type of traffic will be referred to as "Off-Net" traffic. In addition to the
basic Voice over Internet service, we will be bundling fax, voice mail and other
value added services through our network.
BILLING SERVICES
We will provide Billing Services to the operators of the ViP Gateways in the
form of a monthly reconciliation or settlement which will require that we
generate a Call Detail Record (CDR) report and invoice based on the calls and
charges that were originated by each ViP Gateway operator for that period.
Additionally, each ViP Gateway operator will generate a CDR report and invoice
based on the calls and charges that were terminated by their respective systems
for that period. A subsequent settlement will take place where the amounts for
originating and terminating traffic are calculated and a single invoice amount
will result for that period.
PRODUCTS AND SERVICES
How Our Products Work
The Golden Access ViP product is an IP Telephony system that provides quality
voice communication over the public Internet. The flexible architecture allows
for configurations ranging from 4 port analog systems which can support 48,000
minutes/month of traffic up to a 60 port digital (2 x E1) system which can
support 720,000 minutes/month. Additional systems can be added to expand the
total capacity of the service provider as traffic volumes increase.
There are several applications that can be supported with ViP:
a) Phone to Phone
The subscriber makes a local phone call to the Service Provider's ViP
system and enters their PIN and destination phone number. The originating
ViP system routes the call over the Internet to the ViP system (remote)
that is closest to the destination telephone. This routing is determined
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by the originating system on the basis of lowest cost, load and quality of
service. The remote system then sends the call over the local telephone
lines to the destination phone. This is just like making a regular phone
call and it all takes place in a matter of seconds.
b) Phone to PC
The subscriber can call a multimedia equipped PC from a regular telephone
by making a local phone call to the Service Provider's ViP system and
enters their PIN and the destination Internet address using their
telephone keyboard. The routing and termination of the call to the
destination computer is the same as above.
c) PC to Phone
Subscribers with a multimedia equipped PC can make a call to a regular
phone by contacting the Service Provider's ViP system and entering their
PIN and destination telephone number via their computer screen. The
routing and termination of the call to the destination telephone is the
same as above.
d) Web Browser to Phone
Subscribers surfing the Web with a multimedia equipped PC and MicroSoft
NetMeeting can connect to a company's call center by clicking a call
button located on the organization's web site. This allows subscribers to
talk to a customer service group, order department or help desk by using
their web browser. The application this feature supports will increase the
effectiveness of an organization's web site and call center and will
improve the way that customers can receive information and conduct
business with the company.
The Golden Access GateKeeper software is a network management package that is
offered with the ViP product and is necessary to operate the service. GateKeeper
allows the Service Provider the capability to administer their subscribers,
route their calls, perform billing and accounting and monitor the status of the
system, subscriber activity and network connections. The GateKeeper is graphics
based and offers the Service Provider easy-to-use screens from which they can
operate their service. In addition, GateKeeper provides the interface to Golden
Access's Network Control Center, which manages the entire network of Service
Provider systems. The software-intensive architecture is characterized by very
low incremental cost, both for repeat systems and for expansion of systems
already installed. To ensure authorized use of the product, continued operation
will be dependent upon a hard-lock that is specific to each licensed system and
a challenge-response exchange over IP every 5 minutes. In the event that someone
attempts to make unauthorized copies of the Golden Access software or
reverse-engineer, these processes will ensure that it is impossible to do so.
Golden Access Product
The ViP product is an IP Telephony Gateway platform running proprietary
Golden Access software using a standard ODBC database on an MS Windows NT
operating system.
The ViP hardware platform is based on standard PC hardware to ensure
serviceability worldwide and the Dialogic DM3/IPLink family of IP/Telephony
modules. The Digital Signal Processing (DSP) by hardware ensures high
scalability without the requirement for larger and more powerful hardware and
supports from 2 to hundreds of analog or digital (E1/T1) lines on a single
ViP Gateway. It is H.323 compatible and uses industry standard coders from
G.723.1 with silence compression to GSM and G.711 A/Mu Law.
The Gateway software offers:
o Support for Phone to Phone, PC to Phone, Phone to PC and Web to Phone
applications
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o Bandwidth management adapted to internet/WAN quality and negotiated to meet
the limitations of the weaker party.
o Flexible call termination and destination blocking for Customers and
Gateways
The GateKeeper software offers:
o Integrated Authorization, Authentication and Accounting
o Integrated Debit/Credit Billing System for Customers and Gateway Network
o Calling Card Support
o Manages Customers and Gateways by Groups including multiple price lists
o Comprehensive Network Monitoring and Management system that measures and
continuously reports the status of the internet links, remote sites and
telephone calls and provides alternate routing/backup in the event of an
outage.
Products - Trademark and Patents
Standards for IP Telephony, such as the recently adopted H.323 are published by
the International Telecommunications Union (ITU), and the protocol is available
to anyone. These standards are published in the public domain, therefore, no
patent protection is believed to be available, nor can it be obtained by anyone
else.
We have recently filed trademarks on our "In and Out" software, and we have
registered a trademark for "ViP", and have pending trademark applications for
our "GOLDENACCESS.COM" logo and design. We do not have any trademark
applications pending outside the United States.
The Golden Access product is mainly software: as such, physical replication is
easy. A software license agreement and hard-lock will be part of any sale, but
the ultimate protection will be the fact that all the IP gateways will be
connected to the Internet and the Golden Access Network Control Center. A
challenge/response exchange will be embedded in the software at the Golden
Access Network Control Center, which will give an appropriate authorization for
continued operation. Effectively, the software "key" will be in Miami. If this
hard-lock comes off, the software stops working.
PRODUCT DEVELOPMENT PLAN
Other products
Golden Access will continue to develop and offer internet-related products and
applications that will be marketed in conjunction with the main product line. We
intend to use the ViP product as a market entry tool for the sale of
"value-added" software applications developed by the Company. These include:
o Internet Video Broadcast - which allows the subscriber to receive live
television broadcasts or taped video transmissions over the internet via
their multimedia PC from anywhere in the world
o Internet Audio Broadcast - which allows the subscriber to receive live or
taped audio broadcasts over the internet via their multimedia PC from
anywhere in the world
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o Video Conferencing - allows the subscriber to conduct face to face meetings
over the internet via their multimedia PC
o Interactive Voice Mail - allows the subscriber to have a "virtual" mailbox,
where they can send and retrieve messages from anywhere in the world
o Internet Follow Me - allows calls to be forwarded "real-time" to the
subscriber anywhere in the world
o In and Out - an employee activity tracking application specifically suited
for the service industry. "In and Out" software combines a time management
(for service businesses) and billing package, with telephone call in features
and applications.
o WebSurvey - a security system using webcams and the Internet to transmit
images to a central monitoring location. Multiple locations can be
simultaneously monitored from anywhere in the world.
DISTRIBUTION METHODS
Our objective is to provide a complete suite of IP telephony products and
services that will be marketed to internet service providers, telecom service
providers and corporate network providers, who in turn, can resell the service
to their respective retail/corporate markets.
Golden Access has several channels to market, which are not mutually exclusive:
1) Direct Wholesale Traffic Carrier (FSP).
To establish a global network of gateways through direct Commercial Service
Agreements with service providers in countries outside the United States.
Golden Access will sell the IP Telephony Gateway(s) in addition to providing
access to our global network at rates billed on per minute usage that will
allow the foreign service provider (FSP) to offer a low cost international
telephone service to its customers. This global network will provide service
to anywhere in the world either via IP through our FSP network or via PSTN
from our international gateway facilities in the U.S. Each FSP will also
provide a rate table to Golden Access for termination into their respective
territories, which will allow us to terminate traffic from the other FSPs on
the network direct via IP at a reduced cost. A monthly reconciliation based
on traffic volumes and rate tables will be conducted between Golden Access
and each FSP, in which we will act as a clearing and settlement house. The
FSPs will deal only with Golden Access and not directly with each other.
2) Regional Marketing Partnerships (RMP) & Distribution
To establish a global network of Distributors/ Regional Marketing Partners to
license the ViP software from Golden Access and integrate into a total system
solution for their customers, who would include ISP's, telecom service
providers and corporations. This is by far the most attractive channel since
the RMP will be responsible for the frontline sales and technical support of
the ViP Gateway customers as well as for the marketing and promotional costs
in their respective markets. We will only be responsible to provide the
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software licenses and higher level technical/sales support as required. The
ViP customers from this channel will have access to our global network and
billing reconciliation, with the advantage in that the RMP would be entitled
to a commission on the total revenue generated by the traffic of its
customers over our network. This will provide added incentive to the RMP's to
continue the promotion of Golden Access after the initial sales since they
will be beneficiaries of a recurring revenue stream from the resultant
traffic volumes.
In instances where an ISP, telecom service provider or corporation wishes to
establish a domestic network or VPN (Virtual Private Network) based on Golden
Access's technology and not access our global network, a Purchase Agreement,
including software license, will be established. However, the cost of the
software license will be higher than if they were using our network since we
will not be collecting the same level of revenues from the traffic. The
software license may include a formula based on performance that will provide
us with royalties for the first year of traffic that is carried over the
private network.
3.) Marketing in regions outside of North America
This will be accomplished through licensing agreements with strongly
capitalized parties capable of financing initial orders. Licensing agreements
for several markets are already in place.
Competitive Analysis
While all our competitors have products grouped by their status as an End-User,
Equipment Provider and/or Network Provider, we have integrated all these
components into one solution.
Due to the comprehensive nature of the Golden Access ViP product, in which a
fully integrated solution consolidates the following functionality into a single
product offering at a very low price
o IP Telephony Gateway
o IP Telephony GateKeeper
o Global Network
There are numerous companies offering only the Gateway functionality, such as
Cisco Systems, Nuera and Array Telecom, however it is necessary to obtain 3rd
party GateKeeper software to deploy these products in a managed network
configuration. Secondly, without the Global Network connectivity, communications
is limited to those locations where the actual nodes would be located.
There are others that offer both the Gateway and GateKeeper capability such as
Vocaltec Communications, Ascend Communications, Ericsson, Siemens, Inter-Tel and
Nortel, however, they lack the Global Network connectivity and are priced at
least 50% higher than Golden Access.
There are a few companies that offer Global Network connectivity similar to
Golden Access such as Lucent, Franklin Telecom, ITXC, Delta Three and ViP
Calling, however, it is only Lucent and Franklin that use their own platforms to
offer this service, while the others use 3rd party platforms.
The key competitive factors that will allow Golden Access to establish itself
within a market dominated by large companies such as Lucent, Cisco, Nortel and
Siemens will be price and our ability to adapt quicker to the dynamic nature of
this nascent technology.
IP Telephony products currently offered do not have the full capabilities of
Golden Access. This represents a tremendous potential in terms of traffic and
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market share with relatively few solutions identified at this stage, let alone
in commercial service. Golden Access is well positioned to lead the market
direction through its "first-in-the-door" approach to the markets as well as its
partnership with Dialogic (Intel/Microsoft).
Competitive Issues
The market that we are competing in falls into several categories:
o VoIP Gateway products
o VoIP Gatekeeper products
o VoIP Billing products
o Enhanced IP Services
o Transmission Services
Since we are offering a totally integrated solution that encompasses all of
these markets, it creates a highly competitive environment for the Company as we
must differentiate our product against those that specialize in either one or
more of the above mentioned areas.
The primary competitive factors that will determine success in these markets
are:
o Quality of Service
o The ability to meet and anticipate customer needs through multiple
service offerings
o Responsive customer support services
o Price
Future competition could come from a variety of companies in the Internet
equipment and service arena, traditional network equipment providers and the
telecommunications service industry. These industries include companies who have
greater resources and larger subscriber bases than we have and which have been
in operation for many years.
Internet companies such as Net2Phone, NetSpeak, Vocaltec, Clarent and Lucent all
currently offer certain portions of the complete communications solution
provided by us and through ongoing consolidation and partnerships that is
becoming prevalent in this industry, will be able to provide the total solution
within a relatively short period of time.
Internet service companies such as ITXC, ViP Calling, RSL Communications, USA
Global Link, iPASS and GRIC have all established global IP-based networks which
are rapidly expanding in terms of traffic volumes and coverage. By partnering
with some of the larger equipment providers such as Vocaltec, Clarent and Cisco,
they are positioned to become dominant influences on the Internet services
landscape.
Networking companies such as Cisco, Motorola, Nortel, Siemens, Ericsson and
Nokia are able to build upon their existing large base of customers,
traditionally in the PTT/Telco market by offering products that can be easily
added to existing infrastructures and switching networks in the forms of IP
upgrades. Additionally, Motorola, Ericsson, Qualcomm and Nokia are focusing on
the emergence of wireless IP applications, which is projected to be a
significant part of the 3G (3rd generation) IP services.
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Traditional telecommunications carriers such as AT&T, Sprint, MCI, Frontier and
USA West are all in the process of implementing strategies to offer enhanced
Internet services including VoIP and Unified Messaging. Due to their extensive
network infrastructure, specifically in the area of IP bandwidth, and their
large traffic base, they are extremely well positioned to obtain the
technologies they need either through acquisition or partnering. These carriers
will be the driving force behind the growing trend towards consolidation within
the industry since they represent such a major portion of the telecommunications
market and have substantially greater financial, technical and marketing
resources.
These and other competitors may be able to bundle their services and products
that are not offered by us, which could place us at a significant competitive
disadvantage. Many of our competitors enjoy economies of scale that can result
in lower cost structure for transmission and related costs, which could cause
significant pricing pressure within the industry. When compounded with
decreasing rates for international termination and the subsequent increased
price competition, this may result in a further reduction of prices, profit
margins and market share.
STRATEGIC PARTNERS
We have recently entered into contract discussions with Cisco to become a Cisco
Value Added Partner (CVAP). Cisco's interest in Golden Access is directly linked
to the Gatekeeper/Billing software that is integrated onto the ViP product,
which, they would like to have integrated to work with their standard Router
Product line. Eventually, they would like it to be integrated to work with their
VoIP Router product. This represents a unique opportunity for Golden Access to
develop an interface for our existing software so that it works with the Cisco
products. Cisco's intent would be to provide their Router customers with a list
of CVAPs that can be contacted to provide them with the network level software
package for management and billing. This potentially creates another revenue
stream from the sales of software licenses to Cisco Router customers; allows us
to carry their international traffic over our global termination network once
they have installed our software onto their Cisco networks; and provides
enhanced visibility and credibility through our association with Cisco.
We have similar agreement with Dialogic, where we are also a member of their
"Partner Program" which is used to mutually increase product sales through joint
development and marketing.
We also have strategic relationships with Nortel, Inc., Joss Maru, Ltd., the
GoldenAccess Group and Microsoft (from whom we licensed a number of software
programs upon which our platform is utilized), and others. We utilize these
relationships to distribute our products, to pay some of our development costs,
to increase our product awareness acceptance in the marketplace and to build
cooperative joint efforts which would potentially give us a competitive
advantage to our existing and potential customers.
We believe that this is a significant benefit and gives us a leveraged position
competitively.
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GOVERNMENT REGULATION
Federal
We provide Internet services, in part, through data transmissions over public
telephone lines. These transmissions are governed by regulatory policies
establishing charges and terms for wire line communications. We currently are
not subject to direct regulation by the FCC or any other governmental agency,
other than regulations applicable to businesses generally. However, in the
future we could become subject to regulation by the FCC or another regulatory
agency as a provider of basic telecommunication services. For example, a number
of long distance telephone carriers recently filed a petition with the FCC
seeking a declaration that Internet telephone service is a "telecommunication
service" subject to common carrier regulation. Such a declaration, if enacted,
would create substantial barriers to our entry into the Internet telephone
market. The FCC has requested comments on this position, but has not set a
deadline for issuing a final decision. Also, a number of local telephone
carriers have asked the FCC to levy access charges on "enhanced service
providers," which may be deemed to include ISPs. Although the Chairman of the
FCC has indicated his opposition to levying service charges against ISPs, local
interconnection charges could be levied in the future. Moreover, the public
service commissions of certain states are exploring the adoption of regulations
that might subject ISPs to state regulation.
The FCC regulates the licensing construction, operation and acquisition of
wireless telecommunications systems in the U.S. pursuant to the 1934 Act, as
amended and the roles, regulations and policies promulgated by the FCC
thereunder. Included in the regulations is the use of the electromagnetic
spectrum in the United States, including the frequency band currently used by
our radio products. Part 15 of the FCC regulations defines frequency bands in
which unlicensed operation of radio equipment that meets certain technical and
operational requirements is permitted. We utilize CDPD for the majority of our
wireless transmissions which is currently under FCC regulations.
In the international markets, there are various categories of government
regulations. In those countries that have accepted certain worldwide standards,
such as the FCC rulings or those from the European Telecommunications Standards
Institute, we are not expected to experience significant regulatory issues in
bringing our products to market. Approval in these markets involves retaining
local testing agencies to verify specific product compliance. However, many
developing countries, including the large markets in India and China, have not
fully developed or have no frequency allocation, equipment certification or
telecommunications regulatory standards. In these types of markets, we will
actively work both directly and with industry standard bodies, to conform
regulations to worldwide standards.
State and Local
The scope of the regulatory authority covers such matters as the terms and
conditions of interconnection between Local Exchange Carriers ("LECs") and
wireless carriers with respect to intrastate services, customer billing
information and practices, billing disputes, other consumer protection matters,
facilities construction issues, transfers of control, the bundling of services
and equipment and requirements relating to the availability of capacity on a
wholesale basis. In these areas, particularly, the terms and conditions of
interconnection between LECs and wireless providers, the FCC and state
regulatory authorities share regulatory responsibilities with respect to
interstate and intrastate issues, respectively.
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The FCC and a number of state regulatory authorities have initiated proceedings
or indicated their intention to examine access charge obligations, mutual
compensation arrangements for interconnections between local exchange carriers
and wireless providers, the pricing of transport and switching facilities
provided by LECs to wireless providers, the implementation of number portability
to permit customers to retain their telephone numbers when they change service
providers, and alterations in the structure of universal service funding among
other matters.
We may become an active participant in proceedings before the FCC and before
state regulatory authorities. Proceedings with respect to the foregoing policy
issues before the FCC and state regulatory authorities could have significant
impacts on the competitive market structure among wireless providers and the
relationships between wireless providers and other carriers. We are unable at
this point to predict the scope, pace, or financial impact of policy changes
which could be adopted in these proceedings. To keep it apprised of developments
in this area, we will retain special FCC counsel in the event we deem it
necessary.
Recent Events
The 1996 Act mandates significant changes in existing regulation of the
telecommunications industry to promote competitive development of new service
offerings, to expand public availability of telecommunications services and to
streamline regulation of the industry. The 1996 Act provides that implementing
its legislative objectives will be the task of the FCC, the state public
utilities commissions and a federal-state joint board. The FCC released a
tentative implementation schedule on February 12, 1996. Much of this
implementation must be completed in numerous virtually simultaneous proceedings
with short, 6 to 18 month, deadlines. These proceedings are expected to address
issues and proposals already before the FCC in pending rule making proceedings
affecting the wireless industry as well as additional areas of
telecommunications regulation not previously addressed by the FCC and the
states.
The primary purpose and effect of the new law is to open all telecommunications
markets to competition including the local wireline loop. The 1996 Act makes all
state and local barriers to competition unlawful, whether they are direct or
indirect. It directs the FCC to hold notice and comment proceedings and to
preempt all inconsistent state and local laws and regulations. Only narrow
powers are left to state and local authorities. Each state retains the power to
impose competitively neutral requirements that are both consistent with the 1996
Act's universal service provision and necessary for universal service, public
safety and welfare, continued service quality and consumer rights. While a state
may not impose requirements that effectively function as barriers to entry or
create a competitive disadvantage, the scope of state authority to maintain
existing or adopt new requirements under this section is not clearly spelled
out. Before it preempts a state or local requirements as violating the entry
barrier prohibition, the FCC must hold a notice and comment proceeding.
The recently enacted Telecommunications Act contains certain provisions that
lift, or establish procedures for lifting certain restrictions relating to the
RBOCs' ability to engage directly in the Internet access business. The
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<PAGE>
Telecommunications Act also makes it easier for national long distance carriers
such as AT&T to offer local telephone service. In addition, the
Telecommunications Act allows the RBOCs to provide electronic publishing of
information and databases. Competition from these companies could have an
adverse effect on the Company's business.
Due to the increasing use of the Internet, it is possible that additional laws
and regulations may be adopted with respect to the Internet, covering issues
such as content, user privacy, pricing, libel, intellectual property protection
and infringement and technology export and other controls. Changes in the
regulatory environment relating to the Internet access industry, Including
regulatory changes that directly or indirectly affect telecommunications costs
or increase the likelihood or scope of competition from regional telephone
companies or others, could have a material adverse effect on us. See "Risk
Factors -- Competition."
RECENT ACQUISITION OF ASSETS
On July 30th 1999, we purchased certain equipment,from our majority shareholder,
Clifford Pierce, developed software, various customer contracts, licenses and
agreements, as well as applicable pending trademarks, which constitute the
majority of the resources upon which we are building our distribution network.
We purchased the equipment for $ 877,000; the software and related intellectual
property for $ 540,100; and the discounted present value of the customers'
contracts and agreements for $9,154,000, for a total purchase price of
$10,571,100. We paid for this purchase with 2,166,700 shares of our common
stock. We may issue additional warrants or options should adjustments to the
value of the assets be required as a result of the final result of valuations we
are receiving concerning these assets.
We also assumed two leases, one in Miami and one in Cordoba, Argentina. We
assumed no other liabilities as part of the asset purchase.
Because the majority of the assets were under the common control of our majority
share holder, Clifford Pierce, we may not be able to book the true market value
of the purchase price of the software and intellectual property components
within the overall purchase, but may be forced to book the lower cost basis for
the development of such software and intellectual property. Therefore, our
balance sheet will not reflect several million dollars of market value that
could be realized if we sold such software and intellectual property to a
disinterested, arms length third party, or if we liquidated the company's
assets.
PROPRIETARY INFORMATION
We have developed custom designed software for use with Internet access, and
relies on a combination of copyright, trademark, patent and trade secrets and
contractual restrictions to establish and protect our licensed and trademarked
technology. It is our policy to execute agreements with employees and
consultants upon the commencement of their relationships with us. These
agreements provide that confidential information developed or made known during
the course of a relationship with us is to be owned by the Company or its
respective subsidiaries and kept confidential and not disclosed to third parties
except in specific circumstances. There can be no assurance that the steps taken
by us will be adequate to prevent misappropriation of our technology or that our
competitors will not independently develop technologies that are substantially
equivalent or superior to our technology.
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EMPLOYEES
As of November 1, 1999, we employed a staff of 21 of whom 19 are employees, four
of whom are in Argentina, five of whom are in management, 3 in administration, 3
in marketing, 2 in customer service, 4 on the technical staff, and 2 outside
consultants.
None of our employees are represented by a labor union. We have not experienced
any work stoppage and consider relations with our employees to be good.
FACILITIES
We are currently leasing an office facility of 4500 square feet on a year to
year basis for $5,488 per month plus applicable sales tax, for administration,
technical support, and customer service. Our offices are located at 6161 Blue
Lagoon Drive, suite 190, Miami, Florida 33126 and the telephone number is (305)
264-2401. The facilities are adequate for our current needs and suitable
additional space, should it be needed, is expected to be available to
accommodate expansion of our operations on commercially reasonable terms.
Our offices in Argentina are in Cordoba, where we occupy 2000 sq. ft. and pay
$700 per month.
SELLING SECURITYHOLDERS
We have agreed to register shares of some of our current stockholders for resale
at the same time as the stock dividend distribution in this prospectus and to
pay all offering expenses. These shareholders are selling 385,100 shares.
We will not receive any of the proceeds of their sales.
Although we have fixed the price of our stock, selling stockholders are free to
sell at any price they desire. Sales by selling stockholders at a price lower
than indicated in this prospectus could adversely impact our ability to sell our
stock in the future than if there were not such a concurrent registration.
The following table sets forth the name of each selling shareholder and the
number of their shares being sold in connection with this prospectus.
NAME Number of Shares Number of Restricted Shares
Potter Financial, Inc. 143,000 0
Dorf Financial, Inc. 97,000 46,000
Barry Potter 118,200 0
The Tory Trust 26,900 24,800
The CCS Group of Shareholders 114,900 0
------------------------------------
TOTAL 500,000 70,800
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PRINCIPAL SHAREHOLDERS
The following table sets forth certain information regarding beneficial
ownership of our Common Stock as of October, 1999, by (i) each person (including
any "group" as that term is used in Section 13(d)(3) of the Securities Act of
1934 (the "Exchange Act") who is known by us to own beneficially 5% or more of
the Common Stock, (ii) each director of the Company, and (iii) all directors and
executive officers as a group. Unless otherwise indicated, all persons listed
below have sole voting power and investment power with respect to such shares.
The total number of shares authorized is 10,000,000 shares of Common Stock, each
of which is $.001 per share par value. 2,872,500 shares of Common Stock have
been issued and are outstanding as follows:
5%OR MORE
CLIFFORD PIERCE (1)= 2,170,700 shares (representing 75.6% of the outstanding
shares) plus 120,000 options (See "Stock Options") (representing 61.2% of the
fully diluted shares, not inclusive of options reserved but not yet granted).
=============================-------------------------------------=============
Number of
Registered Shares Number of Shares
Shareholder with this that Remain Total Shares
Registration Restricted
=============================-------------------------------------=============
Clifford Y. Pierce (1) 0 2,170,700 2,170,700(2)
=============================-------------------------------------=============
Paul Callihoo (1) 0 0 0 (3)
=============================-------------------------------------=============
Nigel Gray (1) 0 0 0 (4)
=============================-------------------------------------=============
David Heath (1) 0 0 0 (5)
- ------------------------------------------------------------------=============
Seymour Kantor (1) 0 0 0 (5)
- ------------------------------------------------------------------=============
===============================================================================
All Management and 0 2,170,700 2,170,000
Directors as a Group (6)
===============================================================================
===============================================================================
All other small 500,000 201,800 701,800 (7)
shareholders as a group
===============================================================================
(1) Directors and Officers
(2) Has Options for 120,000 shares (see "Stock Options" and "Certain
Transactions") (3) Has options for 150,000 shares (see "Stock Options" and
"Certain Transactions") (4) Has options for 50,000 shares (see "Stock Options"
and "Certain Transactions") (5) Has options reserved within the reserved block
of options, but not yet allocated,
in an undetermined amount.
(6) As footnoted above.
(7) Have options for 550,000 shares (see "Stock Options" and "Certain
Transactions")
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MANAGEMENT AND BOARD OF DIRECTORS
There are currently five (5) authorized and occupied seats on the Board of
Directors. The following tables set forth information with respect to the
directors and executive officers.
All directors will hold office until the expiration of their respective terms,
and until their successors have been elected or qualified or until their death,
resignation, retirement, removal, or disqualification. Vacancies on the board
will be filled by a majority vote of the remaining directors. Officers of the
Company serve at the discretion of the Board of Directors. Mr. Heath and Mr.
Kantor, as outside Directors, serve on the audit committee.
BOARD OF DIRECTORS
==================------------------------==============
NAME AGE COMMENCED TERM
==================------------------------==============
Clifford Pierce 60 June 1997 Sept 2002
==================------------------------==============
Paul Callihoo 42 August 1999 Sept 2001
==================------------------------==============
Nigel Gray 45 August 1999 Sept 2001
==================------------------------==============
David Heath 43 August 1999 Sept 2000
========================================================
Seymour Kantor 48 August 1999 Sept 2000
========================================================
MANAGEMENT
The senior management team has excellent credentials and a proven performance
record in product development, telecommunications networking and global
marketing.
=====================--------------------------------------================
NAME AGE OFFICE COMMENCED
=====================--------------------------------------================
Clifford Pierce 60 Chairman, President & Chief June 1997
Financial Officer
=====================--------------------------------------================
Paul Calihoo 42 Executive VP of June 1999
International Marketing &
Chief Operating Officer
===========================================================================
Nigel Gray 45 Vice President December 1998
===========================================================================
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The Officers and Directors of the Company are set forth below.
CLIFFORD Y. PIERCE, 60. Mr. Pierce is President, CFO, and Chairman of the
Board of Directors of Goldenaccess.com. As company founder, he integrated the
resources and technology into the platform that supports our products'
rollout to its distributor base. Mr. Pierce's business background includes
over 35 years of related experience in establishing and maintaining start-up
businesses involved in manufacturing, sales and marketing, network marketing,
and finance.
He is a Certified Public Accountant, licensed in the State of Florida.
Receiving his certification on September 23, 1973. He received his Bachelor
of Science from Long Island University in 1962, and completed most of his
pre-doctoral studies. Mr. Pierce was elected to the National Honor Society -
Pi Gamma Mu.
He worked for major accounting firms and developed a wide area of expertise ,
before forming his own firm in 1975. Mr. Pierce is a founder and director of
several companies and is President of a computer component import-export firm
which has sales volume of over $10,000,000 annually. Mr. Pierce currently acts
to coordinate our research and development team with the needs of the
marketplace.
Paul Callihoo, Executive Vice President, Director, 42. Paul joined Golden Access
to establish the business development and sales & marketing programs, while
developing a global distribution and sales channel network by partnering with
key system integration companies within Asia, North America, Latin America and
Europe. He developed the business model that defines our line of products and
services. Paul directed the market trial and commercial launch phases of ViP.
Prior to joining us, he served as Executive VP, Sales & Marketing, for CYBERFAX
INC/TELSTAR COMMUNICATIONS, in Montreal, Canada; as VP, for International
Business Development for ALPHANET TELECOM INC., of Toronto, Ontario, Canada,
where he launched a next generation telecommunications service using Voice over
IP (VoIP) and developed strategic acquisitions, joint ventures and partnerships;
as Director, Business Development, for CANADIAN MARCONI COMPANY (CMC) of Kanata,
Ontario, Canada, where he had P/L responsibility for the Commercial
Communications Division with annual revenues of over $30M.
Previously, he Implemented and supported online operations of AIR CANADA's
reservations system in Winnipeg, Manitoba, Canada; and served over 5 years in
the Department of Defense, in Ottawa, Ontario, Canada, as a systems engineer
maintaining various levels of communications equipment.
He received his degree in Electrical Engineering from Ryerson Polytechnical
University, Toronto, Ontario. He intends to devote full time to the Company
acting in an executive capacity.
Nigel J. Gray, Marketing Director, 45. Nigel Gray is presently the marketing
director of Golden Access. His background in the computer industry dates from
1974. He started as a general manager of one of the first Apple Distributors in
the country and worked for many successful firms such as Miami Micro
Distributors, Ameritech Exports, Jair Electronics Corporation, and U.S,
Computers.
After graduating from Colorado State University, Mr. Gray completed his master's
at Florida International University. His twenty-five years experience in the
computer software and hardware industry has pioneered network development and
new state of the art products.
David W. Heath, Director, 43. David Heath, through Heath & Company, provides
operational and development consulting services for the real estate industry.
Mr. Heath has an extensive hospitality management background having worked for
more than ten years in various management capacities in hotel and restaurant
operations. He managed the Florida hospitality consulting practice of Arthur
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Andersen LLP, and directed numerous consulting engagements in Florida and the
Caribbean. Mr. Heath 's areas of specialization and expertise include the
analysis of operational effectiveness; the design, development and
implementation of automated labor productivity management systems; and strategic
planning, market repositioning and workouts for distressed companies. For the
Boca Raton Resort & Club in Boca Raton, FL, a 963-room resort, he implemented a
new automated productivity management system. For the Four Seasons Resort &
Club, in Irving, Texas, he developed a plan for the resort's $10 million
expansion.
Mr. Heath graduated from University of Massachusetts and completed his MBA at
Northeastern University.
Seymour Kantor, Director, 48. Mr. Kantor is the president of Advance Tec,
a hi-tech engineering firm serving the cellular and two way radio industry
for the last eight years. He previously owned Joy Silkscreen, Inc, for
three years.
Mr. Kantor is originally from Johannesburg, South Africa. He graduated from
the University of Witwatersrand Law School and practiced law in South Africa
for 12 years. He emigrated to the United States in 1987.
DIRECTORS' COMPENSATION
Our employee directors receive no compensation for their services as directors.
Our outside directors shall receive compensation for their services as
prescribed by our board of directors. As of the date of this filing, no Board
member has received compensation for his role on the Board. Members of the
Executive Advisory Board will receive payment for their services, as well as
reimbursement for travel and other expenses incurred in connection with
attendance at each meeting.
EXECUTIVE ADVISORY BOARD
We will establish an informal Executive Advisory Board, appointed by Mr. Pierce
and Mr. Callihoo. The role of the Executive Advisory Board is to be available to
assist our management with general business and strategic planning advice upon
request from time to time. Accordingly, the Executive Advisory Board Members
intend to devote themselves part-time to the affairs of the Company, as needed.
To date, we have asked Barry Potter and Ross, Forster, Scillia & Brooks, Inc.,
respectively, to act in such capacities.
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EXECUTIVE COMPENSATION
Through June 30, 1999, no officer or director received any remuneration.
=================-----------------------------------------===============
NAME and POSITION Year Salary Bonus Other annual
Compensation
=================-----------------------------------------===============
Clifford Pierce 2000 96,000 None in (1)(4)
----
President 2000(2)
=================-----------------------------------------===============
Paul Callihoo 2000 60,000 None in (1) (3)(4)
----
Vice President 2000(2)(3)
=========================================================================
Nigel Gray
Vice None in
President of 2000 48,000 2000(2) (1) (3)(4)
----
Marketing
=========================================================================
FOOTNOTES:
1. Also included in the year 2000 compensation package is up to $18,000 per
annum for reimbursements of automobile expenses and approximately $12,000 per
annum for premium payments on the Company's group Health and Dental Policy.
Other employees receive automobile reimbursements to this extent although
most employees are reimbursed for only some automobile related expenses. No
other employees at this time have any portion of their personal or family
coverage paid for by us and they contribute to the full cost of the plan they
select.
2. Future Bonuses will be comprised of subjective and profitability bonuses. The
subjective bonus is generally composed of qualitative performance objectives
reset by the Board of Directors on an annual basis, and would vary from year
to year both in nature and amount to be earned. Fiscal 2000 is the first year
for which Mr. Pierce will be eligible for such a bonus feature. The
profitability bonus is earned by the attainment of Board of Director
prescribed revenues and profits, and can be modified on an annual basis both
in nature and amount.
3. Also comprised of commissions and commission overrides. 4. As of the date of
this filing, no Board member has received
compensation for his role on the board.
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EMPLOYMENT AGREEMENTS
We plan to enter into employment agreements with each of Messrs. Pierce,
Callihoo, and Gray which provide for an annual base compensation of $96,000,
$60,000, and $48,000, respectively, and such bonuses as the Board of Directors
may from time to time determine. When we hire our new CFO, Director of Sales,
and any other Key executives, we will execute appropriate agreements for each
upon their employment.
=============================---------------------------------==================
Clifford Pierce Paul Callihoo Nigel Grey
=============================---------------------------------==================
Term 3 3 3
=============================---------------------------------==================
Annual Compensation $96,000 $60,000 $48,000
=============================---------------------------------==================
CPI Adjustments No No No
=============================---------------------------------==================
Deferred Compensation Yes Yes Yes
=============================---------------------------------==================
Subjective Bonus Up to $100,000 Up to $100,000 Up to $50,000
=============================---------------------------------==================
Profitability Bonus $50,000 plus a $50,000 plus a $10,000 plus a
percentage percentage percentage
============================----------------------------------==================
Benefits Yes Yes Yes
=============================---------------------------------==================
Automobile Yes Yes Yes
- --------------------------------------------------------------==================
Health and Dental Coverage Yes Yes Yes
- --------------------------------------------------------------==================
================================================================================
Health/Dental Premium None None None
Paid By Employee
================================================================================
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STOCK OPTIONS
We have not adopted any formal stock options plans to reward and provide
incentives to our officers, directors, employees, consultants and other eligible
participants, but we anticipate doing so as follows: (a) the Executive Stock
Incentive Plan, (b) the 1999 Incentive Stock Option Plan, and (c) the 1999 Stock
Incentive Plan. The Company has reserved 1,720,000 shares for issuance under the
plans. Awards under each plan may be in the form of incentive stock options or
non-qualified stock options. The plans will be administered by the Company's
Board of Directors, which is authorized to select the plan recipients, the time
or times at which awards may be granted and the number of shares to be subject
to each option awarded. We have granted some of these already, despite not
having a fully documented plan at this time.
Five Year Options to purchase stock @ $0.25, exercisable 180 days subsequent to
the effective date of our first registration statement, granted July 1, 1999.
Clifford Pierce 120,000 shares
Reserved for other Executives 630,000 shares
Five Year Options to purchase stock @ $0.25, 20% of which may be exercised
August 1, 2000, and 80% may be exercised August 1, 2001,but not earlier than 180
days subsequent to the effective date of our first registration statement,
granted July 1, 1999.
Paul Callihoo 150,000 shares
Nigel Gray 50,000 shares
500,000 Five Year Options to purchase stock @ $5.00, exercisable 90 days
subsequent to the effective date of our first registration statement, granted
July 1, 1999 to Barry Potter.
50,000 Five Year Options to purchase stock @ $0.25, exercisable 90 days
subsequent to the effective date of our first registration statement, granted
July 1, 1999 to Southeastern Venture Corporation.
Reserved for Non-Key and Technical employees 220,000 shares
INDEMNIFICATION OF OFFICERS AND DIRECTORS
At present we have not entered into individual indemnity agreements with our
Officers or Directors. However, we shall indemnify, to the fullest extent under
Florida law, our directors and officers against certain liabilities incurred
with respect to their service in such capabilities.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to our directors, officers and controlling persons pursuant to the
foregoing provisions, or otherwise, we have been advised that in the opinion of
the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act of 1933, as amended, and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by us of expenses incurred or paid by a
director, officer or controlling person in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, we will, unless in the
opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933, as amended, and we will be governed by the final adjudication of
such case.
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DIRECTORS AND OFFICERS INSURANCE
We are exploring the possibility of obtaining directors and officers ("D&O")
liability insurance. We have obtained several premium quotations but have not
entered into any contract with any insurance company to provide said coverage as
of the date of this Prospectus. There is no assurance that we will be able to
obtain such insurance.
KEYMAN LIFE INSURANCE
Keyman Life Insurance is expected to be purchased after the effective date of
this prospectus in amounts up to $1 million, 50% payable to the Company and 50%
payable to family beneficiaries. We are planning to purchase such insurance
towards the cross purchase of shares from the estate of an officer or director
and to provide us with the capital to replace the executive loss (executive
search for successor, etc.).
CERTAIN TRANSACTIONS
On June 13,1997, the Board of Directors authorized the issuance of an aggregate
of 4,000 shares of Common Stock as founder's stock at a price of $.001 per
share, to Clifford Pierce.
On August 20, 1999, the Board of Directors of CathTech, Group, Inc., authorized
the issuance of an aggregate of 2,872,500 shares of Common Stock as founder's
stock to its founders, employees, and advisors to the Company at a price of
$.001 per share, to approximately 7 individuals and other entities, of which,
2,166,700 shares were exchanged for the assets acquired by our Company, from our
president, in July of 1999.
On August 26, 1999, we merged with CathTech, Inc., and retained our name and
business. On the effective date of this prospectus, 129,300 shares of our stock
will be distributed as a stock dividend to the shareholders of Cardiac Control
Systems, Inc., and their agent, of record of August 26, 1999. We have adopted a
policy that all future transactions between the Company and officers, directors
and 5% shareholders will be on terms no less favorable that could be obtained
from unaffiliated third parties and will be approved by a majority or
independent, disinterested directors of the Company.
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DESCRIPTION OF SECURITIES
All material provisions of our capital stock are summarized in this prospectus.
However the following description is not complete and is subject to applicable
Florida law and to the provisions of our articles of incorporation and bylaws.
We have filed copies of these documents as exhibits to the registration
statement related to this prospectus.
COMMON STOCK
We are authorized to issue 10,000,000 shares of Common Stock, at a par value
$.001 per share. As of the date of this Prospectus, there are 2,872,500 shares
of Common Stock outstanding. After giving effect to the exercise of all
outstanding options and warrants (1,720,000 shares), the issued and outstanding
capital stock of the Company would consist of 4,592,500 shares of Common Stock.
YOU HAVE THE VOTING RIGHTS FOR YOUR SHARES. You and all other holders
of Common Stock are entitled to one vote for each share held of record on all
matters to be voted on by stockholders. You have no cumulative voting rights
with respect to the election of directors, with the result that the holders of
more than 50% of the shares voting for the election of directors can elect all
of the directors then up for election.
YOU HAVE DIVIDEND RIGHTS FOR YOUR SHARES. You and all other holders of
Common Stock are entitled to receive dividends and other distributions when, as
and if declared by the Board of Directors out of funds legally available, based
upon the percentage of our common stock you own. We will not pay dividends. You
should not expect to receive any dividends on shares in the near future. This
investment may be inappropriate for you if you need dividend income from an
investment in shares.
YOU HAVE RIGHTS IF WE ARE LIQUIDATED. Upon our liquidation, dissolution
or winding up of affairs, you and all other holders of our Common Stock will be
entitled to share in the distribution of all assets remaining after payment of
all debts, liabilities and expenses, and after provision has been made for each
class of stock, if any, having preference over our Common Stock. Holders of
shares of Common Stock, as such, have no conversion, preemptive or other
subscription rights, and there are no redemption provisions applicable to the
Common Stock. All of the outstanding shares of Common Stock are, and the shares
of Common Stock offered hereby, when issued in exchange for the consideration
paid as set forth in this Prospectus, will be, fully paid and non-assessable.
Our directors, at their discretion, may borrow funds without your prior
approval, which potentially further reduces the liquidation value of your
shares.
YOU HAVE NO RIGHT TO ACQUIRE SHARES OF STOCK BASED UPON THE PERCENTAGE
OF OUR COMMON STOCK YOU OWN WHEN WE SELL MORE SHARES OF OUR STOCK TO OTHER
PEOPLE. This is because we do not provide our stockholders with preemptive
rights to subscribe for or to purchase any additional shares offered by us in
the future. The absence of these rights could, upon our sale of additional
shares of common stock, result in a dilution of our percentage ownership that
you hold.
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YOU HAVE NO RIGHT TO ELECT AN ENTIRE NEW BOARD OF DIRECTORS IN ANY
GIVEN YEAR. Provisions of our certificate of incorporation, our bylaws and
Florida law could make it more difficult for a third party to acquire us, even
if doing so would be beneficial to our stockholders. For example, our articles
of incorporation provide for a classified board of directors, meaning that only
approximately one-third of our directors will be subject to re-election at each
annual stockholder meeting.
Shares Eligible For Future Sale
We have 2,872,500 shares of Common Stock issued and outstanding. The shares of
Common Stock registered in this Prospectus will be freely transferable without
restrictions or further registration under the Securities Act, except for any of
our shares purchased by an "affiliate" (as that term is defined under the Act)
who will be subject to the resale limitations of Rule 144 promulgated under the
Act.
There will be approximately 2,372,500 shares of Common Stock outstanding that
are "restricted securities" as that term is defined in Rule 144 promulgated
under the Securities Act, of which 2,170,700 are owned by our President. As
such, 201,800 restricted shares are owned by Shareholders who could sell their
shares under rule 144 after a one year holding period has elapsed.
The shares of Common Stock owned by insiders, officers and directors are deemed
"restricted securities" as that term is defined under the Securities Act and in
the future may be sold under Rule 144, which provides, in essence, that a person
holding restricted securities for a period of one (1) year may sell every three
(3) months, in brokerage transactions and/or market maker transactions, an
amount equal to the greater of (a) one percent (1%) of our issued and
outstanding Common Stock or (b) the average weekly trading volume of the Common
Stock during the four (4) calendar weeks prior to such sale. Rule 144 also
permits, under certain circumstances, the sale of shares without any quantity
limitation by a person who is not an affiliate of the Company and who has
satisfied a two (2) year holding period. Additionally, shares underlying
employee stock options granted, to the extent vested and exercised, may be
resold beginning on the ninety-first day after the Effective Date of a
Prospectus, or Offering Memorandum pursuant to Rule 701 promulgated under the
Securities Act.
As of the date hereof and upon effectiveness of this prospectus, none of our
shares of Common Stock (other than those which are qualified by the SEC in
connection with this registration) are available for sale under Rule 144. Future
sales under Rule 144 may have an adverse effect on the market price of the
shares of Common stock. Our officers, directors and certain of our security
holders have agreed not to sell, transfer or otherwise dispose of their shares
of our Common Stock or any securities convertible into Common Stock for a period
of 12 months from the date hereof.
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Under Rule 701 of the Securities Act, persons who purchase shares upon exercise
of options granted prior to the date of this Prospectus are entitled to sell
such shares after the 90th day following the date of this Prospectus in reliance
on Rule 144, without having to comply with the holding period requirements of
Rule 144 and, in the case of non-affiliates, without having to comply with the
public information, volume limitation or notice provisions of Rule 144.
Affiliates are subject to all Rule 144 restrictions after this 90-day period,
but without a holding period.
There has been no public market for our Common Stock. With a relatively minimal
public float and without a professional underwriter, there is little or no
likelihood that an active and liquid public trading market, as that term is
commonly understood, will develop, or if developed that it will be sustained,
and accordingly, an investment in our common stock should be considered highly
illiquid. Although we believe a public market will be established in the future,
there can be no assurance that a public market for the Common Stock will
develop. If a public market for the Common Stock does develop at a future time,
sales of shares by shareholders of substantial amounts of our Common Stock in
the public market could adversely affect the prevailing market price and could
impair our future ability to raise capital through the sale of our equity
securities.
EXCHANGE LISTING
It is currently anticipated that our Common Stock will be eligible for listing
on Nasdaq coincident with or within 90 days of the effective date of this
prospectus. We are also filing applications for listing on at least one regional
stock exchange. To continue to be listed on Nasdaq, however, we must maintain
$2,000,000 in net assets, or a $35,000,000 market capitalization or $500,000 net
income in the latest year or 2 of the last three fiscal years. In addition,
continued inclusion requires two market makers, a minimum bid price of $1.00 per
share, 500,000 shares in the public float with a market value of $1,000,000, and
300 round lot shareholders. The failure to meet these maintenance criteria in
the future may result in the delisting of our securities from Nasdaq, and
trading, if any, in our securities would thereafter be conducted on the OTC
Bulletin Board, which is owned by Nasdaq. As a result of such delisting, an
investor could find it more difficult to dispose of our securities, and our
market value may fluctuate widely, as is the case with many OTCBB securities.
If our Common Stock were to become delisted from trading on Nasdaq, and any
other regional exchange, and the trading price of the Common Stock were to fall
below $5.00 per share on the date our securities were delisted, trading in such
securities would also be subject to the requirements of certain rules
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which require additional disclosure by broker-dealers in connection with
any trades involving a stock defined as a penny stock (generally, any
non-Nasdaq, non-exchange listed equity security that has a market price of less
than $5.00 per share, subject to certain exceptions). Such rules require the
delivery, prior to any penny stock transaction, of a disclosure schedule
explaining the penny stock market and the risks associated therewith, and impose
various sales practice requirements on broker-dealers who sell penny stocks to
persons other than established customers and accredited investors (generally
institutions). For these types of transactions, the broker-dealer must make a
special suitability determination for the purchaser and have received the
purchaser's written consent to the transaction prior to sale. The additional
burdens imposed upon broker-dealers by such requirements may discourage
broker-dealers from effecting transactions in our securities, which could
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severely limit the market price and liquidity of such securities and the ability
of purchasers in this offering to sell their securities in the secondary market.
Disclosure is also required to be made about commissions payable to both the
Broker/Dealer and the registered representative and current quotations for the
securities. Finally, monthly statements are required to be sent disclosing
recent price information for the penny stock held in the account and information
on the limited market in penny stocks.
The foregoing penny stock restrictions will not apply to our securities if such
securities are listed on a regional exchange and have certain price and buying
information provided on a current and continuing basis or meet certain minimum
net tangible assets or average revenue criteria. Otherwise we will remain
subject to Section 15(b)(6) of the Exchange Act governing these penny stock
restrictions.
DIVIDEND POLICY
We have never declared or paid cash dividends on our Common Stock and anticipate
that all future earnings will be retained for development of our business. The
payment of any future dividends will be at the discretion of our Board of
Directors and will depend upon, among other things, future earnings, capital
requirements, the financial condition of the Company and general business
conditions.
STOCK TRANSFER AGENT
Our transfer agent and registrar of the Common Stock is Sun Trust Bank, Mail
Code 258, PO box 4625, Atlanta, Georgia 30302 .
EXPERTS
Our financial statements (development stage companies) as of and for the years
ending June 30, 1998 and 1999, have been audited by Kingery, Crouse & Hohl,
P.A., CPAs, Tampa, FL our independent auditors, as set forth in their report
included herein and incorporated herein by reference. Such financial statements
have been included in reliance upon such report given upon their authority as
experts in accounting and auditing.
LEGAL MATTERS
There is no past, pending or, to our knowledge, threatened litigation or
administrative action which has or is expected by our management to have a
material effect upon our business, financial condition or operations, including
any litigation or action involving our officers, directors, or other key
personnel.
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The Law Offices of Gary M Appelblatt, Esq., 3610 American River Dr., Suite 112,
Sacramento, Ca. 95864 [E-mail Address: [email protected]], will pass upon
certain legal matters relating to this prospectus.
AVAILABLE INFORMATION
We have filed with the Securities and Exchange Commission (the "Commission") a
Registration Statement on Form SB-2 relating to the Common Stock registered
hereby. This Prospectus, which is part of the Registration Statement, does not
contain all of the information included in the Registration Statement and the
exhibits and schedules thereto. For further information with respect to us, the
Common Stock registered hereby, reference is made to the Registration Statement,
including the exhibits and schedules thereto. Statements contained in this
Prospectus concerning the provisions or contents of any contract, agreement or
any other document referred to herein are not necessarily complete. With respect
to each such contract, agreement or document filed as an exhibit to the
Registration Statement, reference is made to such exhibit for a more complete
description of the matters involved.
The Registration Statement, including the exhibits and schedules thereto, may be
inspected and copied at prescribed rates at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, DC 20549 and
at the Commission's regional offices at 7 World Trade Center, 13th Floor, New
York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. The Commission also maintains a web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission, including our Company. The address of such
site is [http://www.sec.gov].
We intend to furnish to our shareowners annual reports containing audited
consolidated financial statements certified by independent public accountants
for each fiscal year and quarterly reports containing unaudited consolidated
financial statements for the first three quarters of each fiscal year.
We will provide without charge to each person who receives a Prospectus, upon
written or oral request of such person, a copy of any of the information that
was incorporated by reference in the Prospectus (not including Exhibits to the
information that is incorporated by reference unless the Exhibits are themselves
specifically incorporated by reference). Any such request should be directed to
our Chief Financial Officer at our offices in Miami.
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GOLDENACCESS.COM, INC.
(A Development Stage Enterprise)
TABLE OF CONTENTS
- ------------------------------------------------------------------------------
Page
Independent Auditors' Report F-2
Financial Statements as of and for the year ended June 30, 1999 and for the
respective periods June 13, 1997 (date of incorporation) to June 30, 1998 and
1999:
Balance Sheet F-3
Statements of Operations F-4
Statements of Stockholder's Deficit F-5
Statements of Cash Flows F-6
Notes to Financial Statements F-7
- ------------------------------------------------------------------------------
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[Letterhead of Kingery, Crouse & Hohl, P.A.]
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of GoldenAccess.Com, Inc.:
We have audited the accompanying balance sheet of GoldenAccess.Com, Inc., a
development stage enterprise (the "Company"), as of June 30, 1999 and the
related statements of operations, stockholder's deficit and cash flows for the
year then ended, and for the respective periods June 13, 1997 (date of
incorporation) to June 30, 1998 and 1999. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining on a test basis, evidence supporting
the amounts and the disclosures in the financial statements. An audit also
includes assessing the accounting principles used and the significant estimates
made by management, as well as the overall financial statement presentation. We
believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above, present fairly, in
all material respects, the financial position of the Company, as of June 30,
1999 and the results of its operations and its cash flows for the year then
ended, and for the respective periods June 13, 1997 (date of incorporation) to
June 30, 1998 and 1999, in conformity with generally accepted accounting
principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note B to the
financial statements, the Company has generated recurring losses from operations
and has a stockholder's deficit as of June 30, 1999. In addition, the Company
will require a significant amount of capital to proceed with its business plan.
These factors, among others, raise substantial doubt about the Company's ability
to continue as a going concern. Management's plans in regard to these matters
are also described in Note B. The financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
Kingery, Crouse & Hohl P.A.
November 12, 1999
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<PAGE>
GOLDENACCESS.COM
(A Development Stage Enterprise)
BALANCE SHEET AS OF JUNE 30, 1999
- --------------------------------------------------------------------------------
ASSETS
Cash and cash equivalents $ 4,149
Receivables 2,400
Equipment (net of
accumulated depreciation of $948) 11,052
----------
TOTAL $ 17,601
==========
LIABILITIES AND STOCKHOLDER'S DEFICIT
LIABILITIES -
Stockholder advances $ 54,592
----------
STOCKHOLDER'S DEFICIT:
Common stock - $.001 par value 100,000,000
shares authorized; 4,000 shares issued and outstanding 4
Additional paid-in capital 5,996
Deficit accumulated during the development stage (42,991)
----------
Total stockholder's deficit (36,991)
----------
TOTAL $ 17,601
==========
----------------------------------------------------------------------------
See notes to financial statements.
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GOLDENACCESS.COM, INC.
(A Development Stage Enterprise)
STATEMENTS OF OPERATIONS
<TABLE>
- --------------------------------------------------------------------------------
<CAPTION>
<S> <C> <C> <C>
For the For the
For the period June period June
year ended 13, 1997 13, 1997
June 30, (date of (date of
1999 incorporation) incorporation)
to to
June 30, 1998 June 30, 1998
-------------- -------------- --------------
REVENUES:
Telephone service $ 2,857 $2,857
Consulting - related party 3,000 3,000
Design 529 529
-------------- --------------
Total revenues 6,386 6,386
-------------- --------------
OPERATING EXPENSES:
Research and development - related 28,902 $11,385 40,287
party
Organization costs 3,235 159 3,394
Depreciation 948 948
Professional fees 1,050 1,050
Advertising 787 787
Office and administration 1,540 204 1,744
Travel 1,167 1,167
-------------- -------------- --------------
Total operating expenses 37,629 11,748 49,377
-------------- -------------- --------------
NET LOSS $31,243 $11,748 $42,991
============== ============== ==============
NET LOSS PER SHARE:
Basic $ 7.81 $ 2.94 $ 10.75
============== ============== ==============
Weighted average number of shares-basic 4,000 4,000 4,000
============== ============== ==============
- --------------------------------------------------------------------------------
</TABLE>
See notes to financial statements.
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<PAGE>
GOLDENACCESS.COM, INC.
- ------------------------------------------------------------------------------
(A Development Stage Enterprise)
STATEMENTS OF STOCKHOLDER'S DEFICIT
<TABLE>
- ------------------------------------------------------------------------------
<CAPTION>
<S> <C> <C> <C> <C> <C>
Deficit
Accumulated
Additional During the
Common Stock Paid-in Development
Shares Amount Capital Total
Stage
-------- --------- ----------- ---------- -------------
Balances at June 13, 1997
(date of incorporation) 0 $ 0 $ 0 $ 0 $ 0
Issuance of common stock 4,000 4 5,996 6,000
Net loss for the period June
13, 1997 (date of incorporation)
to June 30, 1998 (11,748) (11,748)
-------- --------- ----------- ---------- -------------
Balances at June 30, 1998 4,000 4 5,996 (11,748) (5,748)
Net loss for the year ended
June 30, 1999 (31,243) (31,243)
-------- --------- ----------- ---------- -------------
Balances at June 30, 1999 4,000 $ 4 $ 5,996 $(42,991) $ (36,991)
======== ========= =========== ========== =============
</TABLE>
See notes to financial statements.
75
<PAGE>
GOLDENACCESS.COM, INC.
(A Development Stage Enterprise)
STATEMENTS OF CASH FLOWS
<TABLE>
- ------------------------------------------------------------------------------
<CAPTION>
<S> <C> <C> <C>
For the For the
Period June Period June
13, 1997 13, 1997
For the (date of (date of
Year Ended incorporation) incorporation)
June 30, to June 30, to June 30,
1999 1998 1999
1998 1998
------------ ------------- -------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (31,243) $ (11,748) $ (42,991)
Adjustment to reconcile net loss to net
cash used by operating activities:
Depreciation 948 948
Increase in receivables (2,400) (2,400)
------------ ------------- -------------
NET CASH USED BY OPERATING ACTIVITIES (32,695) (11,748) (44,443)
------------ ------------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES -
Purchases of equipment (10,162) (1,838) (12,000)
------------ ------------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock 6,000 6,000
Advances from stockholder 43,352 11,240 54,592
------------ ------------- -------------
CASH PROVIDED BY FINANCING ACTIVITIES 43,352 17,240 60,592
------------ ------------- -------------
NET INCREASE IN CASH AND CASH EQUIVALENTS 495 3,654 4,149
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 3,654 0 0
------------ ------------- -------------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 4,149 $ 3,654 $ 4,149
============ ============= =============
SUPPLEMENTAL DISCLOSURE OF CASH FLOW
INFORMATION - Interest and taxes paid $ 0 $ 0 $ 0
============ ============= =============
- ------------------------------------------------------------------------------
</TABLE>
See notes to financial statements.
76
<PAGE>
GOLDENACCESS.COM, INC.
(A Development Stage Enterprise)
NOTES TO FINANCIAL STATEMENTS
- ------------------------------------------------------------------------------
NOTE A - FORMATION AND OPERATIONS OF THE COMPANY
GoldenAccess.Com, Inc. (the "Company") was incorporated under the laws of the
state of Florida on June 13, 1997. The Company, which is considered to be in the
development stage as defined in Financial Accounting Standards Board Statement
No. 7, intends to provide a complete, fully integrated solution to IP Telephony
systems. The Company is based in Miami, Florida and has an office in Argentina.
On August 26, 1999, the Company merged with another Florida entity, CathTech
Group, Inc. ("CathTech"). CathTech became the surviving legal entity, which
succeeded to the name GoldenAccess.Com, Inc.
(see NOTE G).
NOTE B - GOING CONCERN
The accompanying financial statements have been prepared on a going concern
basis, which contemplates the realization of assets and the satisfaction of
liabilities in the normal course of business. The Company generated net losses
of $31,243 and $11,748 for the respective periods ended June 30, 1999 and 1998,
and is anticipating that it will incur a net loss for the fiscal year ending
June 30, 2000. In addition, the Company will require a significant amount of
capital to implement its business plan. The Company's ability to continue as a
going concern is dependent upon its ability to secure an adequate amount of
capital from its stockholder and/or certain strategic partners to finance its
anticipated losses and planned principal operations. However, there is no
assurance they will be successful in these efforts. These factors, among others,
may indicate that the Company will be unable to continue as a going concern for
a reasonable period of time.
The financial statements do not include any adjustments relating to the
recoverability and classification of recorded asset amounts or the amounts and
classification of liabilities that might be necessary should the Company be
unable to continue as a going concern.
NOTE C - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Use of Estimates
The preparation of financial statements in accordance with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and the disclosure of
contingent assets and liabilities at the date of the financial statements. The
reported amounts of revenues and expenses during the reporting period may be
affected by the estimates and assumptions management is required to make. Actual
results could differ from those estimates.
Equipment
Equipment is stated at cost. Major additions are capitalized, while minor
additions and maintenance and repairs, which do not extend the useful life of an
asset, are expensed as incurred. Depreciation is computed using the
straight-line method over the assets estimated useful lives of five years.
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Income Taxes
Income taxes are computed in accordance with Financial Accounting Standards
Statement No. 109 "Accounting for Income Taxes" ("SFAS 109"). Under SFAS 109,
deferred taxes are recognized for the tax consequences of temporary differences
by applying enacted statutory rates applicable to future years to differences
between the financial statement carrying amounts and the tax basis of existing
assets and liabilities. Also, the effect on deferred taxes of a change in tax
rates is recognized in income in the period that included the enactment date.
Statement of Cash Flows
For purposes of the statement of cash flows, the Company considers all highly
liquid investments purchased with an original maturity of three months or less
to be cash equivalents.
Net Loss Per Share
The Company computes net loss per share in accordance with SFAS No. 128
"Earnings per Share" ("SFAS No. 128") and SEC Staff Accounting Bulletin No. 98
("SAB 98"). Under the provisions of SFAS No. 128 and SAB 98, basic net loss per
share is computed by dividing the net loss available to common stockholders for
the period by the weighted-average number of common shares outstanding during
the period. Diluted net loss per share is computed by dividing the net loss for
the period by the number of common and common equivalent shares outstanding
during the period. As of June 30, 1999 there are no dilutive shares.
NOTE D - COMMITMENTS
At June 30, 1999, the Company had obligated itself under a three-year operating
lease agreement for office space in Argentina. The lease, which expires in May
2002, requires monthly rental payments of approximately $700. Future minimum
lease payments under this lease, and a lease entered in October 1999 (see NOTE
G), are approximately as follows:
Years Ending
June 30, Amounts
2000 $ 54,800
2001 54,800
2002 7,700
---------
Total $117,300
Management anticipates that the Company will enter three-year employment
agreements with its President and stockholder, as well as two other officers.
The employment agreements, which are expected to require total base salaries of
approximately $204,000 for each of the three years ending June 30, 2000 through
2002, are also expected to contain provisions for bonuses, other incentives and
fringe benefits.
On July 2, 1999, the Company engaged a stockholder of CathTech to provide
certain consulting services under a one-year consulting agreement. As
consideration for such consulting services, the Company granted such entity
options to purchase 500,000 shares of its common stock for $5.00 per share (see
NOTE G). The options expire on December 31, 2002.
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NOTE E - INCOME TAXES
During the year ended June 30, 1999, the Company recognized losses for both
financial and tax reporting purposes. Accordingly, no deferred taxes have been
provided for in the accompanying statement of operations. The significant
components of the deferred tax asset as of June 30, 1999, assuming an effective
income tax rate of 34%, are approximately as follows:
Deferred Income Tax Asset -
Net operating loss carryforwards $ 14,000
-------------
Deferred income tax asset 14,000
Less valuation allowance (14,000)
-------------
Total deferred income tax asset $ 0
==============
The Company established a valuation allowance to fully reserve the deferred
income tax asset as of June 30, 1999 as the realization of the asset did not
meet the required asset recognition standard established by Financial Accounting
Standards Statement No. 109 "Accounting for Income Taxes." Accordingly, the
Company has not recorded any benefits for deferred income taxes in the
accompanying statements of operations.
At June 30, 1999, the Company had net operating loss carryforwards of
approximately $40,000 for income tax purposes. These carryforwards will be
available to offset future taxable income through the year 2019.
NOTE F - OTHER RELATED PARTY TRANSACTIONS
During the year ended June 30, 1999 and the period June 13, 1997 (date of
incorporation) to June 30, 1998, the Company's President and stockholder
provided various equipment, services and a portion of his home in Florida for
office space for no consideration. The value of this equipment and office space,
as well as the services rendered are considered to be insignificant and as such
no expense has been recorded in the accompanying statements of operations.
During the year ended June 30, 1999 and the period June 13, 1997 (date of
incorporation) to June 30, 1998, the Company paid research and development costs
of approximately $28,000 and $11,000, to an individual that subsequent to June
30, 1999 became a stockholder.
During the year ended June 30, 1999 and the period June 13, 1997 (date of
incorporation) to June 30, 1998, the Company's President and stockholder
advanced various funds to the Company. These advances, which were unsecured and
non-interest bearing, were converted to equity in July 1999.
During the year ended June 30, 1999, the Company earned $3,000 in consulting
revenues from an entity affiliated through common ownership.
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<PAGE>
NOTE G - SUBSEQUENT EVENTS
Stock Option Plan
The Company has reserved 1,720,000 shares of its common stock for issuance under
certain stock option plans it anticipates adopting. In addition to the options
discussed at NOTE D, subsequent to June 30, 1999, the Company has granted
certain key employees and a consultant five-year options to purchase 370,000
shares of its common stock for $0.25 per share.
Acquisition of Assets
On July 30, 1999, the Company purchased from its President and stockholder
certain equipment, software, customer contracts and agreements and the rights to
pending trademarks for 2,166,700 shares of its common stock.
Merger
On August 26, 1999, the Company merged with CathTech, which became the surviving
entity but retained the name of GoldenAccess.Com, Inc. Upon the effective date
of the merger, the issued and outstanding shares of the surviving corporation
were owned 87.5% by the then existing common stockholders of the Company and
12.5% by the stockholders of CathTech. In connection with this merger, the
Company paid $90,000 to an entity controlled by the stockholders of CathTech.
Leases
On October 15, 1999, the Company entered into a lease with an affiliate for
certain office space. The lease requires monthly payments of $5,488 plus
applicable sales tax and expires on February 14, 2001.
Proposed Registration of Common Stock
The Company plans to register 500,000 shares of its common stock. 129,300 of
these shares will be distributed to stockholders of the previous parent of
CathTech as a stock dividend. The remaining 370,700 shares will be registered
for future sale by the holders thereof. Accordingly, the Company will not
receive any proceeds from the registration.
- ------------------------------------------------------------------------------
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NO DEALER, SALESPERSON OR ANY OTHER PERSON IS AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS PROSPECTUS AND, IF GIVEN
OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY US. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITY OTHER THAN THE SECURITIES OFFERED
BY THIS PROSPECTUS, OR AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS
NOT AUTHORIZED OR IS UNLAWFUL. THE DELIVERY OF THIS PROSPECTUS SHALL NOT, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO THE DATE OF THE PROSPECTUS.
TABLE OF CONTENTS
GOLDENACCESS.COM, INC.
500,000 SHARES COMMON STOCK
(par value $.001 per share)
Summary....................................... 5
Our Company .................................. 6
[LOGO]GOLDENACCESS.COM
Risk Factors ................................. 9
Distribution ................................ 33
Management Discussion of Analysis
of Condition and Results
of Operations................................. 34
Year 2000 Readiness Disclosure ............... 35
Capitalization ............................... 38
Business ..................................... 39
Recent Assets Acquisition..................... 52
Selling Securityholders ...................... 53
Principal Shareholders ....................... 54
Management ................................... 55
Description of Securities .................... 62
Shares Eligible for Future Sale .............. 63
Dividend Policy .............................. 65
Stock Transfer Agent ......................... 65 GOLDENACCESS.COM, INC.
Experts ...................................... 65 6161 Blue Lagoon Drive,
Legal Matters ................................ 66 Suite 190
Available Information ...................... 66 Miami, FL 33126
Index to Financial Statements ................ F1 305-264-2401
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Part II-INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The information required by this item is incorporated by reference to
"indemnification" in the prospectus herein.
Section 607.0850 of the Florida Business Corporation Act empowers a corporation
to indemnify its directors and officers and to purchase insurance with respect
to liability arising out of their capacity or status as directors and officers
provided that this provision shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty to loyalty to the corporation
or its stockholders (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) arising
under Section 607.0850 of the Florida Business Corporation Act, or (iv) for any
transaction from which the director derived an improper personal benefit.
The Florida Business Corporation Act provides further that the indemnification
permitted thereunder shall not be deemed exclusive of any other rights to which
the directors and officers may be entitled under the corporation's by-laws, any
agreement, vote of shareholders or otherwise.
At the time of this filing, we have not entered into individual indemnity
agreements with our officers and directors. However, this is anticipated and the
effect of the foregoing will be to require the Registrant to indemnify the
officers and directors of the Registrant for any claim arising against such
person in their official capacities if such person acted in good faith and in a
manner that he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE SECURITIES ACT OF
1933, AS AMENDED, MAY BE PERMITTED TO DIRECTORS, OFFICERS, OR PERSONS
CONTROLLING THE REGISTRANT PURSUANT TO THE FOREGOING PROVISIONS, THE REGISTRANT
HAS BEEN INFORMED THAT IN THE OPINION OF THE SECURITIES AND EXCHANGE COMMISSION,
SUCH INDEMNIFICATION IS AGAINST PUBLIC POLICY AS EXPRESSED IN THE ACT AND IS
THEREFORE UNENFORCEABLE.
In the event that a claim for indemnification against such liabilities (other
than the payment by us of expenses incurred or paid by a director, officer or
controlling person in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with
the securities being registered, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933, as amended,
and we will be governed by the final adjudication of such case.
83
<PAGE>
ITEM 25. OTHER EXPENSES OF ISSURANCE AND DISTRIBUTION
The following table sets forth the estimated expenses payable by the Registrant
in connection with the issuance and distribution of the securities being
registered pursuant to this Registration Statement. All expenses will be borne
by the Registrant.
SEC Registration Fee $1211.25
NASD Registration Fee $925.00
Printing Expenses (including stock certificates) $11,200.001
Accounting Fees and Expenses $10,400.001
Legal Fees and Expenses $35,000.00
Blue Sky Fees and Expenses $7,300.001
Miscellaneous $5,300.001
Travel and Due Diligence Meeting Expenses $23,000.001
Total Estimated Expenses $94,336.251
1. The foregoing expenses, except for the SEC and NASD fees, are estimated.
84
<PAGE>
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
(a) Unregistered Securities Sold
The following table sets out, for all sales within the three years last
preceding this Registration Statement by the Registrant of its securities
without registration under the Securities Act of 1933, (i) the date, title and
amount of securities sold (ii) names of underwriters, if any (iii) the persons
to whom the securities were sold (iii) the consideration paid for the
securities, whether cash or non-cash and (iv) the exemption under the Securities
Act of 1933 relief on:
============--------------------------------------------============
Name of Option Cardiac Other By Stock Other
Purchaser Holders1 Control Purchasers Exchange Founders3
Services, for Cash2
Inc.
============--------------------------------------------============
Securities
============--------------------------------------------============
Class of Common Common Common Common Common
Stock
============--------------------------------------------============
Dates 7/99-8/99 8/26/99 8/97 - 8/99
Acquired 11/97
============--------------------------------------------============
Amount 1,720,000 129,300 4,000 2,166,700 719,100
============--------------------------------------------============
Consideration Founder $60,592 Founder
Shares Shares4
====================================================================
Exemption Regulation Section 4 Regulation Regulation Section 4
Claimed D (Rules (2) D (Rules D (Rules (2)
501-508) 501-508) 501-508)
====================================================================
All investors had the opportunity to ask questions and receive answers from all
of our officers, directors and employees. In addition, they had access to review
all of our corporate records and material contracts and agreements.
1. Option holders consist of the following five individuals: Clifford Pierce,
(President, Chief Financial Officer and Chairman of the Board) 120,000 - shares
granted in July, 1999, however, these option shares may not be exercised until
180 days subsequent to the effective date of the company's first registration
statement. The exercise price of the stock is twenty-five cents per share. There
are another 420,000 option shares, twenty percent of which shares can not be
exercised until one year after the effective date of the company's first
registration statement at an option price of twenty-five cents per share. The
remaining eighty percent of the shares may not be exercised until two years
after the effective date of the company's first registration statement. Paul
Callihoo (Executive Vice President of International marketing and current Chief
Operating Officer and Director) has been granted 150,000 of these options and
Nigel Gray (Vice President of Technical and Business Development and Director)
50,000 options. There are 220,000 remaining of these option shares designated
for various key and non-key employees who each earn less than one hundred
thousand dollars per annum. Southeastern Venture Corporation was granted 50,000
options at twenty-five cents per share, in August, 1999, exercisable 90 days
after the effective date of this registration statement. There are 630,000
option shares remaining designated and reserved for the new Chief Executive
Officer, the new Chief Operating Officer and the new Chief Financial Officer.
Barry Potter was granted 500,000 option shares in July, 1999, at an exercise
price of $5.00 per share, which may be exercised 90 days after the effective
date of this registration statement.
2. Clifford Pierce, President.
3. This group consists of the following six individuals or entities, all of whom
received their shares as founders in August, 1999, as that term is defined under
section 230.405 of the General Rules and Regulations of the Securities Act of
1933.: Potter Financial Corporation - 143,000 shares in August, 1999, purchased
for $0.25 per share; Dorf Financial - 143,000 shares in August, 1999, purchased
for par value; Barry Potter - 57,000 shares in August, 1999, purchased for par
value and 86,000 shares purchased for $0.25 per share; Lindsey A. Gertner -
131,000 shares in August, 1999, purchased for $0.25 per share; The Tory Trust -
26,900 shares in August, 1999, purchased for par value; Clifford Pierce -
2,166,700 shares in August, 1999, exchanged for assets, as well as Cardiac
Control Services, Inc. on behalf of their shareholders as a group, prior to
distribution of the stock dividend..
4. Both Cardiac Control services, Inc. and the other five individual and/or
entity founders (described in footnote 3) obtained their shares as a result of
their contribution and efforts in forming CathTech, Inc. and the subsequent
merger with GoldenAccess.Com, Inc. in August, 1999.
CathTech, Inc. was incorporated under the laws of the State of Florida in
August, 1999, by Cardiac Control services, Inc. and the other five individual
and/or entity founders. As such they retained their shares in the August, 1999,
merger with GoldenAccess.Com, Inc., continuing their "founder's" status, which
can be characterized as a Section 4 (2) exemption by an issuer not involving a
public offering.
85
<PAGE>
EXHIBITS
Index to Exhibits "TBPBA" = To Be Provided By Amendment
LIST OF EXHIBITS
========----------------------------------------------=====================
1 Underwriting agreement Not Applicable
========----------------------------------------------=====================
2 Plan of acquisition, reorganization, Not Applicable arrangement,
liquidation or succession
========----------------------------------------------=====================
3.1 Articles of Incorporation of GAC.com Attached
========----------------------------------------------=====================
3.1A Articles of Incorporation of Cath Tech Attached
========----------------------------------------------=====================
3.2 By-laws GAC Attached
========----------------------------------------------=====================
3.2A By-laws Cath Tech and Certification Attached
========----------------------------------------------=====================
4 Instruments defining the rights of holders, Attached including
indentures (See 3.2) Common Stock Specimen Certificate
========----------------------------------------------=====================
4.1 Option Agreements Attached
========----------------------------------------------=====================
5 Opinion re: legality Attached
========----------------------------------------------=====================
6 No exhibit required Not Applicable
========----------------------------------------------=====================
7 Opinion re: liquidation preference (See 3.2) Not Applicable
========----------------------------------------------=====================
8 Opinion re: tax matters Not Applicable
========----------------------------------------------=====================
9 Voting trust agreement Not Applicable
========----------------------------------------------=====================
10 Material contracts
========----------------------------------------------=====================
10.1 Form of IP Gateway Purchase Agreement Attached
========----------------------------------------------=====================
10.2 Form of IP Gateway Commercial Service Attached
Agreement
========----------------------------------------------=====================
10.3 Lease for office in Argentina (Dated) Attached
========----------------------------------------------=====================
10.3A Lease for office in Miami Attached
========----------------------------------------------=====================
10.4 Discar Distribution Agreement Attached
========----------------------------------------------=====================
10.5 Carrier Agreement with Easton Telecom TBPBA
(Frontier Communication)
Pending
========----------------------------------------------=====================
10.6 Carrier Agreement with International Telecom Attached
Communications
========----------------------------------------------=====================
10.7 Purchase Agreement and Bill of Sale Attached
========----------------------------------------------=====================
10.8 CTI-PRO Distribution Agreement for Central Attached
and Eastern Europe
========----------------------------------------------=====================
10.9 Partner Program Agreements TBPBA
========----------------------------------------------=====================
10.10 Partner Program with Dialogic Attached
------------------------------------------------------=====================
10.11 Employment Agreement dated September 22, 1999 TBPBA
With Clifford Y. Pierce (President)
------------------------------------------------------=====================
========----------------------------------------------=====================
10.12 Employment Agreement dated September 22, 1999 TBPBA
With Paul Callihoo (Executive Vice-President)
========----------------------------------------------=====================
86
<PAGE>
10.13 Employment Agreement dated September 22, 1999 TBPBA With Nigel Gray
(Vice-President )
========----------------------------------------------=====================
10.14 PL Data Teknik Distribution Agreement for Attached
Denmark (Pending)
========----------------------------------------------=====================
10.15 Integrated Communications Group Distribution Attached
Agreement for Hong Kong
========----------------------------------------------=====================
10.16 Marketing Agreements TBPBA
========----------------------------------------------=====================
11 Statement re: computation of per share TBPBA earnings (See page F-?)
========----------------------------------------------=====================
12 No exhibit required Not Applicable
========----------------------------------------------=====================
13 Annual or quarterly reports, Form 10-Q Not Applicable
========----------------------------------------------=====================
14 Material Patents Not Applicable
========----------------------------------------------=====================
15 Letter on unaudited interim financial Not Applicable information (See
page F-19)
========----------------------------------------------=====================
16 Letter on change in certifying accountant Not Applicable
========----------------------------------------------=====================
17 Letter on director resignation Not Applicable
========----------------------------------------------=====================
18 Letter on change in accounting principles Not Applicable
========----------------------------------------------=====================
19 Reports furnished to security holders Not Applicable
========----------------------------------------------=====================
19.1 Letter to Shareholders dated TBPBA
========----------------------------------------------=====================
19.2 Letter to Shareholders dated TBPBA
========----------------------------------------------=====================
20 Other documents or statements to security TBPBA
holders
========----------------------------------------------=====================
20.1 State of Florida Merger Filings Attached
========----------------------------------------------=====================
20.2 Plan and Articles of Merger Attached
========----------------------------------------------=====================
21 Subsidiaries of the registrant Not Applicable
========----------------------------------------------=====================
22 Published report regarding matters submitted Not Applicable to vote
========----------------------------------------------=====================
23 Consent of experts and counsel Attached
========----------------------------------------------=====================
23.1 Consent of counsel Attached
========----------------------------------------------=====================
23.2 Consent of accountant Attached
========----------------------------------------------=====================
24 Power of attorney Not Applicable
========----------------------------------------------=====================
25 Statement of eligibility of trustee Not Applicable
========----------------------------------------------=====================
26 Invitations for competitive bids Not Applicable
------------------------------------------------------=====================
27 Financial Data Schedule (See pages F1-F38) Not Applicable
------------------------------------------------------=====================
===========================================================================
28 Information from reports furnished to state Not Applicable insurance
regulatory authorities
===========================================================================
87
<PAGE>
ITEM 28. UNDERTAKINGS
(a) Rule 415 Offering
The undersigned Registrant will:
(1) File, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which, individually or
together, represent a fundamental change in the information in the Registration
Statement; and notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) Include any additional or changed material information on the plan
of distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any of the
Securities that remain unsold at the end of the offering.
(e) Request for acceleration of effective date.
Subject to the terms and conditions of Section 15(d) of the Securities Exchange
Act of 1934, the undersigned Registrant hereby undertakes to file with the
Securities and Exchange Commission any supplementary and periodic information,
documents, and reports as may be prescribed by any rule or regulation of the
Commission heretofore or hereafter duly adopted pursuant to authority conferred
to that section.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 (the "Act") may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, 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 Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the Securities being
registered, 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 Securities Act and will be governed by the final
adjudication of such issue.
88
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, this
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form SB-2 and authorized this registration
statement to be signed on our behalf by the undersigned, in the City of Miami,
State of Florida, on November 12 , 1999.
(Registrant) GOLDENACCESS.COM, INC.
By: //ss//
------------------------------------
Clifford Y. Pierce, President, CFO, and
Chairman of the Board of Directors
In accordance with the Securities Act of 1933 this registration was signed by
the following persons in the capacities and on the dates indicated.
(Signature) //ss// (Date)
November 12, 1999
-------------------------------------
Nigel Gray
Vice President, Director
//ss//
(Signature) ------------------------------------- (Date)
November 12, 1999
Paul Callihoo
Executive Vice President, Director
//ss//
(Signature) ------------------------------------- (Date)
November 12, 1999
David W. Heath
Director
//ss//
(Signature) -------------------------------------
(Date) November 12, 1999
Seymour Kantor
Director
Who must sign: the small business issuer, its principal executive officer or
officers, its principal financial officer, its controller or principal
accounting officer and at least the majority of directors or persons performing
similar functions.
89
<PAGE>
EXHIBITS
Index to Exhibits "TBPBA" = To Be Provided By Amendment
LIST OF EXHIBITS
========----------------------------------------------=====================
1 Underwriting agreement Not Applicable
========----------------------------------------------=====================
2 Plan of acquisition, reorganization, Not Applicable arrangement,
liquidation or succession
========----------------------------------------------=====================
3.1 Articles of Incorporation of GAC.com Attached
========----------------------------------------------=====================
3.1A Articles of Incorporation of Cath Tech Attached
========----------------------------------------------=====================
3.2 By-laws GAC Attached
========----------------------------------------------=====================
3.2A By-laws Cath Tech and Certification Attached
========----------------------------------------------=====================
4 Instruments defining the rights of holders, Attached including
indentures (See 3.2) Common Stock Specimen Certificate
========----------------------------------------------=====================
4.1 Option Agreements Attached
========----------------------------------------------=====================
5 Opinion re: legality Attached
========----------------------------------------------=====================
6 No exhibit required Not Applicable
========----------------------------------------------=====================
7 Opinion re: liquidation preference (See 3.2) Not Applicable
========----------------------------------------------=====================
8 Opinion re: tax matters Not Applicable
========----------------------------------------------=====================
9 Voting trust agreement Not Applicable
========----------------------------------------------=====================
10 Material contracts TBPBA
========----------------------------------------------=====================
10.1 Form of IP Gateway Purchase Agreement Attached
========----------------------------------------------=====================
10.2 Form of IP Gateway Commercial Service Attached
Agreement
========----------------------------------------------=====================
10.3 Lease for office in Argentina (Dated) Attached
========----------------------------------------------=====================
10.3A Lease for office in Miami Attached
========----------------------------------------------=====================
10.4 Discar Distribution Agreement Attached
========----------------------------------------------=====================
10.5 Carrier Agreement with Easton Telecom TBPBA
(Frontier Communication)
(Pending)
========----------------------------------------------=====================
10.6 Carrier Agreement with International Telecom Attached
Communications
========----------------------------------------------=====================
10.7 Purchase Agreement and Bill of Sale Attached
========----------------------------------------------=====================
10.8 CTI-PRO Distribution Agreement for Central Attached
and Eastern Europe
========----------------------------------------------=====================
10.9 Partner Program Agreements TBPBA
========----------------------------------------------=====================
10.10 Partner Program with Dialogic Attached
========----------------------------------------------=====================
10.11 Employment Agreement dated September 22, 1999 TBPBA
With Clifford Y. Pierce (President)
------------------------------------------------------=====================
10.12 Employment Agreement dated September 22, 1999 TBPBA
With Paul Callihoo (Executive Vice-President)
------------------------------------------------------=====================
========----------------------------------------------=====================
90
<PAGE>
10.13 Employment Agreement dated September 22, 1999 TBPBA With Nigel Gray
(Vice-President )
========----------------------------------------------=====================
10.14 PL Data Teknik Distribution Agreement for Attached
Denmark (Pending)
========----------------------------------------------=====================
10.15 Integrated Communications Group Distribution Attached
Agreement for Hong Kong
========----------------------------------------------=====================
10.16 Marketing Agreements TBPBA
========----------------------------------------------=====================
11 Statement re: computation of per share TBPBA earnings (See page F-?)
========----------------------------------------------=====================
12 No exhibit required Not Applicable
========----------------------------------------------=====================
13 Annual or quarterly reports, Form 10-Q Not Applicable
========----------------------------------------------=====================
14 Material Patents Not Applicable
========----------------------------------------------=====================
15 Letter on unaudited interim financial Not Applicable information (See
page F-19)
========----------------------------------------------=====================
16 Letter on change in certifying accountant Not Applicable
========----------------------------------------------=====================
17 Letter on director resignation Not Applicable
========----------------------------------------------=====================
18 Letter on change in accounting principles Not Applicable
========----------------------------------------------=====================
19 Reports furnished to security holders Not Applicable
========----------------------------------------------=====================
19.1 Letter to Shareholders (dated) TBPBA
========----------------------------------------------=====================
19.2 Letter to Shareholders (dated) TBPBA
========----------------------------------------------=====================
20 Other documents or statements to security TBPBA
holders
========----------------------------------------------=====================
20.1 State of Florida Merger Filings Attached
========----------------------------------------------=====================
20.2 Plan and Articles of Merger Attached
========----------------------------------------------=====================
21 Subsidiaries of the registrant Not Applicable
========----------------------------------------------=====================
22 Published report regarding matters submitted Not Applicable to vote
========----------------------------------------------=====================
23 Consent of experts and counsel Attached
========----------------------------------------------=====================
23.1 Consent of counsel Attached
========----------------------------------------------=====================
23.2 Consent of accountant Attached
========----------------------------------------------=====================
24 Power of attorney Not Applicable
========----------------------------------------------=====================
25 Statement of eligibility of trustee Not Applicable
========----------------------------------------------=====================
26 Invitations for competitive bids Not Applicable
========----------------------------------------------=====================
27 Financial Data Schecule (See pages F1-F38) Not Applicable
========----------------------------------------------=====================
28 Information from reports furnished to state Not Applicable
insurance regulatory authorities
========----------------------------------------------=====================
91
<PAGE>
LEFT BLANK
92
<PAGE>
EXHIBIT 3.1
GOLDENACCESS.COM, INC.
ARTICLES OF INCORPORATION
90
<PAGE>
3.1 p1
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
GOLDENACCESS.COM, INC.
(present name)
Pursuant to the provisions of section 607.1006, Florida Statutes, this Florida
profit corporation adopts the following articles of amendment to its articles of
incorporation.
FIRST: Amendment(s)adopted:(indicate article number(s) being amended, added
or deleted)
ARTICLE 2
The number of shares which the corporation has authorized to be
outstanding at any time is 100,000,000.00 with a par value of none.
SECOND: If an amendment for an exchange, reclassification or cancellation
of issued shares, provisions for implementing the amendment if not contained
in the amendment itself, are as follows:
THE NUMBER OF SHARES WHICH THE CORPORATION HAS AUTHORIZED TO BE
OUTSTANDING AT ANY TIME IS 100,000,000.00, WITH A PAR VALUE OF NONE.
THIRD: The date of each amendment's adoption: June 21, 1999.
FOURTH: Adoption of Amendment(s) (CHECK ONE
91
<PAGE>
3.1 p2
The amendment(s) was/were approved by the shareholders. The number of
votes cast for the amendment(s) was/were sufficient for approval.
The amendment(s) was/were approved by the shareholders through voting
groups. The following statement must be separately provided for each
voting group entitled to vote separately on the amendment(s):
"The number of votes cast for the amendment(s) was/were
sufficient for approval by ________________________ ,"
voting group
The amendment(s) was/were adopted by the board of directors without
shareholder action and shareholder action was not required.
The amendment(s) was/were adopted by the incorporators without shareholder
action and shareholder action was not required.
Signed this 21 day of JUNE, 1999.
Signature ___________________________________________________________________
(by the Chairman or Vice Chairman of the Board of Directors, President
or other officer if adopted by the shareholders)
OR
(by a director if adopted by the directors)
OR
(By an incorporator if adopted by the incorporators)
CLIFFORD Y PIERCE
Typed of printed name
PRESIDENT
Title
92
<PAGE>
State of Florida
Department of State
I certify the attached is a true and correct copy of the Articles of
Incorporation of GOLDENACCESS.COM., a Florida corporation, filed on June 13,
1997, as shown by the records of this office.
I further certify the document was electroncially recieved uner FAX audit number
H97000009766. This certificate is issued in accordance with section 15.16,
Florida Statutes, and authenticated by the code noted bleow.
The document number of this corporation is P9700005255.
Given under my hand and the Great Seal of the State of Florida, at
Tallahassee, the Capital, this the Sixteenth day of June, 1997.
Authentication Code: 597A00031928-061397-P97000052555-1/1
Seal of Florida
Omitted image /s/
Sandra B. Mortham
93
<PAGE>
Florida Seal Omitted
Florida Department of State
Sandra B. Mortham, Secretary of State
June 16, 1997
GOLDENACCESS.COM, INC.
1440 J.F. Kennedy Causeway, Ste. 301
North Bay Village, FL 33141
The Articles of Incorporation for GOLDENACCESS.COM, Inc. were filed on
June 13, 1997, and assigned document number P97000052555. Please refer to
this number whenever corresponding with this office.
Enclosed is the certification reuested. To be official, the certification for a
certified copy must be attached to the original document that was electronically
submitted and filed under FAX audit number H97000009766.
A corporation annual report will be due this office between January 1 and May 1
of the year following the calendar ear of the file date year. A Federal Employer
Identification (FEI) number will be required before this report can be filed.
Please apply NOW with the Internal Revenue Service by calling 1-800-829-3676 and
requesting form SS-4.
Please be aware if the corporate address changes, it is the responsibility of
the corporation to notify this office.
Should you have questions regarding corporations, please contact this office at
the address given below.
Should you have questions regarding corporations, please contact this office at
the address given below.
Sharon Tala
Document Specialist Supervisor
New Filings Section
Division of Corporations Lett Number: 597A00031928
94
<PAGE>
3.1-5
ARTICLES OF INCORPORATION
Article 1: Name of Corporation GOLDENACCESS.COM, INC.
Address of Corporation 1440 J.F. KENNEDY CAUSEWAY SUITE 301
NORTH BAY VILLAGE, FL 33141
Article 2: CAPITAL STOCK: The number of shares which the corporation has
authorized to be outstanding at any one time is
100,000, with a par value of none.
(PAR VALUE IS NOT REQIRED).
Article 3: REGISTERED AGENT CLIFFORD Y. PIERCE
And 1440 J.F. KENNEDY CST. SUITE 301
REGISTERED OFFICE: NORTH BAY VILLAGE, FLORIDA 33141
I am familiar with and hereby accept the duties and
responsibilities as Registered agent for said corporation
------------------------- --------------
Signature of Registered Agent Date
Article 4: The Board of Directors are: (Board of Directors in NOT REQIRED)
First listed is President. Second is Vice-President. Then,
sec/treasurer
1. CLIFFORD Y. PIERCE
4216 CLEVELAND STREET
HOLLYWOOD, FLORIDA 33021
Article 5: The Name and Address of the INCORPORATOR is:
CLIFFORD Y. PIERCE
1440 J.F. KENNEDY CAUSEWAY SUITE 301
NORTH BAY VILLAGE, FLORIDA 33141
In witness whereof I have subscribed my name
- -----------------------------------------
Signature of Incorporator
CLIFFORD Y. PIERCE
Prepared by:
95
<PAGE>
EXHIBIT 3.1A
CATHTECH GROUP
ARTICLES OF INCORPORATION
96
<PAGE>
3.1A-1
STATE OF FLORIDA
Department of State
I certify the attached is a true and correct copy of the Articles of Amendment,
Filed on August 30, 1999, to Articles of Incorporation for CATHTECH GROUP, INC.,
a Florida corporation, as shown by the records of this office.
The document number of this corporation is P99000074437.
97
<PAGE>
3.1A-2
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
CATHTECH GROUP, INC.
1.Article 4 of the Articles of Incorporation of CathTech Group, Inc. is amended
As follows:
4. The aggregate number of shares which the corporation shall
Have authority to issue is 10,000,000 shares of common voting
Stock having a par value of $1.00 per share and 1,000,000 shares Of
preferred stock having a par value of $1,000 per share.
2. The foregoing amendment was adopted unanimously by all of the shareholders
And directors of the corporation authorized to vote on such an amendment as of
the 26th day August, 1999.
IN WITNESS WHEREOF, the undersigned Secretary of the corporation has executed
These Articles of Amendment on August 26, 1999.
Signature: __________________________________
Alan Rabin, Secretary
STATE OF FLORIDA
COUNTY OF VOLUNIA
The foregoing instrument was acknowledged before me this 27th day of
August, 1999, By Alan Rabin, as Secretary of CathTech Group, Inc., a Florida
corporation, on behalf of the Corporation. He is personally known to me or has
produced _____________________ as Identification.
NOTARY PUBLIC:
Sign: _______________________________
Print: _______________________________
State of Florida At Large
(Seal)
My Commission Expires:
Title/Rank: ____________________________
Commission Number: ____________________
98
<PAGE>
3.1A-3
FLORIDA DEPARTMENT OF STATE
Katherine Harris
Secretary of State
August 20, 1999
UCC FILING & SEARCH SERVICES
The Articles of Incorporation for CATHTECH GROUP, INC. were filed on August 20,
1999 and assigned document number P99000074437. Please refer To the number
whenever corresponding with this office regarding the above Corporation. The
certification you requested is enclosed.
PLEASE NOTE: COMPLIANCE WITH THE FOLLOWING PROCEDURES IS
ESSENTIAL TO MAINTANING YOUR CORPORATE STATUS. FAILURE TO
DO SO MAY RESULT IN DISSOLUTION OF YOUR CORPORATION.
A CORPORATION ANNUAL REPORT MUST BE FILED WITH THIS OFFICE BETWEEN JANUARY 1 AND
MAY 1 OF EACH YEAR BEGINNING WITH THE CALENDAR YEAR FOLLOWING THE YEAR OF THE
FILING DATE NOTED ABOVE AND EACH YEAR THEREAFTER, FAILURE TO FILE THE ANNUAL
REPORT ON TIME MAY RESULT IN ADMINISTRATIVE DISSOLUTION OF YOUR CORPORATION.
A FEDERAL EMPLOYER IDENTIFICATION (FEI) NUMBER MUST BE SHOWN ON THE ANNUAL
REPORT FORM PRIOR TO ITS FILING WITH THIS OFFICE. CONTACT THE INTERNAL REVENUE
SERVICE TO RECEIVE THE FEI NUMBER IN TIME TOFILE THE ANNUAL REPORT AT
1-800-829-3676 AND REQUEST FORM SS-4.
SHOULD YOUR CORPORATE MAILING ADDRESS CHANGE, YOU MUST NOTIFY THIS OFFICE IN
WRITING, TO INSURE IMPORTANT MAILINGS SUCH AS THE ANNUAL REPROT NOTICES REACH
YOU.
Should you have any questions regarding corporations, please contact this office
At the address given below.
Alan Crum, Document Specialist
New Filing Section Letter number: 699A00042008
99
<PAGE>
3.1A-4
STATE OF FLORIDA
Department of State
I certify the attached is a true and correct copy of the Articles of
Incorporation of CATHTECH GROUP, INC., a Florida corporation, filed on August
20, 1999, as shown by the records of this office.
The document number of this corporation is P99000074437.
100
<PAGE>
3.1A-5
ARTICLES OF INCORPORATION
OF
CATHTECH GROUP, INC.
A Florida Corporation
ARTICLE 1
NAME
The name of this corporation is: CathTech Group, Inc.
ARTICLE 2
DURATION
The duration of this corporation is perpetual. The date and time of commencement
of the corporate existence is the time of filing of the articles of
incorporation by the Department Of State of the State of Florida.
ARTICLE 3
GENERAL PURPOSES
The general purposes for which this corporation is initially
organized are to engage in any or all-lawful business for which corporations may
be incorporated under Florida law.
ARTICLE 4
SHARES
The aggregate number of shares, which the corporation shall have
authority to issue, is 2,500,000 shares of common voting stock having a par
value of $1.00 per share.
101
<PAGE>
3.1A-6
ARTICLE 5
PRINCIPAL OFFICE AND REGISTERED AGENT
The street address of the principal office of the corporation is 3
Commerce Blvd. Palm Coast, FL 32164. The name and address of the initial
registered agent of the corporation is Palmetto Charter Services, Inc., 150
Magnolia Avenue (Post Office Box 2491), Daytona Beach, Florida 32115-2491.
ARTICLE 6
DIRECTORS
The number of directors constituting the initial board of directors
is one (1) and the Name and address of each person who is to serve as a member
thereof is as follows:
Alan Rabin
3 Commerce Blvd.
Palm Coast, FL 32164
The number of directors may be changed from time to time in
accordance with the Bylaws.
ARTICLE 7
INCORPORATOR
The name and address of the incorporator and subscriber to 1,000
shares of the common Voting stock of this corporation is as follows:
Alan Rabin
3 Commerce Blvd.
Palm Coast, FL 32164
102
<PAGE>
3.1A-7
IN WITNESS WHEREOF, the undersigned incorporator does hereby execute and
acknowledge these articles this 15th day of August, 1999.
- --------------------------------
Alan Rabin
STATE OF FLORIDA
COUNTY OF VOLUSIA
The foregoing instrument was acknowledged before me this 19th day of
August, 1999, by Alan Rabin, who is personally known to me or has produced
________________________________ as identification.
NOTARY PUBLIC:
Sign: ________________________________
Print: ________________________________
State of Florida At Large
(Seal)
My Commission Expires:
Title/Rank: _____________________________
Commission Number:
- --------------------
SEAL
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31.A-8
CERTIFICATE DESIGNATING REGISTERED
AGENT AND STREET ADDRESS FOR
SERVICE OF PROCESS
Pursuant to Section 48.091, Florida Statutes, CATHTECH GROUP, INC. hereby
Designates Palmetto Charter Services, Inc. and 150 Magnolia Avenue, (P.O. Box
2491), Daytona Beach, Florida 32115-2491, as its registered agent and the street
address of its registered office, respectively, for service of process within
the State of Florida.
CATHTECH GROUP, INC.
By: ________________________________
Incorporator
ACCEPTANCE OF DESIGNATION
I hereby accept the foregoing designation as registered agent of Cathtech
Group, Inc. for the service of process within the State of Florida.
PALMETTO CHARTER SERVICES, INC.
By: ______________________________
Thomas S. Hart
104 vice President
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EXHIBIT 3.2
BY-LAWS FOR GOLDENACCESS.COM, INC.
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BYLAWS
OF
GOLDENACCESS.COM, INC.
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders of the
Corporation shall be held during the month of December of each year or at such
other time designated by the Board of Directors of the Corporation; but in no
event later than thirteen (13) months after the last preceding annual meeting of
shareholders. Business transacted at the annual meeting shall include the
election of directors of the Corporation.
Section 2. Special Meetings. Special meetings of the shareholders shall be
held when directed by any officer of the Corporation, the Chairman of the Board
of Directors or the Board of Directors, or when requested in writing by the
holders of not less than ten (10%) percent of all the shares entitled to vote at
the meeting. A meeting so requested shall be called for a date not less than ten
(10) nor more than sixty (60) days after the request is made unless the party
requesting the meeting designates a later date. The call for the meeting shall
be issued by the Secretary, unless the President, Board of Directors, or
shareholders requesting the meeting shall designate another person to do so.
Section 3. Place. Meetings of shareholders shall be held at the principal
place of business of the Corporation or at such other place as may be designated
by the Board of Directors, within and without the State of Florida.
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-23-
Section 4. Notice. Written notice stating the place, day and hour 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 meeting, either personally or by first class mail,
telegraph, teletype or other form of electronic communication, by or at the
direction of the President, the Secretary or the officer or persons calling the
meeting, to each shareholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail addressed to the shareholder at his address as it appears on the
stock transfer books of the Corporation, with postage thereon prepaid.
Section 5. Waiver of Notice. Whenever any notice is required to be given to
any shareholder of the Corporation, under the provisions of these Bylaws, a
Waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be equivalent to
the giving of such notice. Attendance of a person at a meeting shall constitute
a waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. 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 unless so required by the Articles of Incorporation or the
Bylaws.
Section 6. Record Date.
(a) The Board of Directors may fix in advance a date as the
record date for any determination of shareholders; in no event may a record date
fixed by the Board of Directors be a date preceding the date upon which the
resolution fixing the record date is adopted. A record date may not be more than
seventy (70) days before the meeting or action requiring a determination of
shareholders.
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(b) If the stock transfer books are not closed and no record
date is fixed for the determination of shareholders entitled to notice or to
vote at a meeting of shareholders or shareholders entitled to receive payment of
a dividend, the close of business on the day before the first notice is mailed
to the shareholders shall be the record date for such determination of
shareholders.
(c) 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 unless the Board of
Directors fixes a new record date for the adjourned meeting, which it must do if
the meeting is adjourned to a date more than 120 days after the date fixed for
the original meeting.
Section 7. Notice of Adjourned Meeting. When a meeting is adjourned to
another time or place, it shall not be necessary to give any notice of the
adjourned meeting if the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken, and at the adjourned
meeting any business may be transacted that might have been transacted on the
original date of the meeting. If, however, after the adjournment the Board of
Directors fixes a new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given as provided in this Article to each shareholder
of record on the new record date entitled to vote at such meeting.
Section 8. Shareholder Quorum and Voting. A majority of the shares entitled
to vote, represented in person or by proxy, shall constitute a quorum at a
meeting of shareholders. If a quorum is present, the affirmative vote of a
majority of the shares represented at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders (except directors shall be
elected by a plurality) unless otherwise provided by law, or these Bylaws.
Section 9. Voting of Shares. Each outstanding share regardless of class
shall be entitled to one vote on each matter, as to which it is entitled to
vote, submitted to a vote at a meeting of shareholders. Shares of stock of this
corporation owned by another corporation, the majority of the voting stock of
which is owned or controlled by this corporation, shall not be voted, directly
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or indirectly, at any meeting and shall not be counted in determining the total
number of outstanding shares at any given time.
Section 10. Proxies. A shareholder may vote either in person or by proxy
executed in writing by the shareholder or his duly authorized attorney-in-fact.
No proxy shall be valid after eleven (11) months from the date thereof unless
otherwise provided in the proxy.
Section 11. Action by Shareholders Without a Meeting. Any action required
by law, these Bylaws, or the Articles of Incorporation of the Corporation to be
taken at any annual or special meeting of shareholders, or any action which may
be taken at any annual or special meeting of shareholders, may be taken without
a meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
shares 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 shares entitled to
vote thereon were present and voted, as is provided by law. Notice of such
action shall be given to those shareholders who have not consented in writing or
who were not entitled to vote on the action so taken, within 10 days after the
authorization by written consent.
ARTICLE II
DIRECTORS
Section 1. Function. All corporate powers shall be exercised by or under
the authority of, and the business and affairs of the Corporation shall be
managed under the direction of, the Board of Directors.
Section 2. Qualification. Directors need not be residents of Florida or
shareholders of the Corporation.
Section 3. Compensation. The Board of Directors shall have authority to fix
the compensation of directors.
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Section 4. Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors, at which action on any corporate
matter is taken, shall be presumed to have assented to the action taken unless
he votes against such action or abstains from voting in respect thereto.
Section 5. Number of Directors. The Corporation shall have a Board of
Directors consisting of such number of directors (but no less than one director)
as shall be determined and fixed by the shareholders at their annual meeting or
at any special meeting of the shareholders called for that purpose. At the first
annual meeting of shareholders, and at each annual meeting thereafter, the
shareholders entitled to vote shall determine the number of directors.
Section 6. Election and Term. The persons named in the Articles of
Incorporation as the members of the initial Board of Directors shall hold office
until the first annual meeting of shareholders and until their successors shall
have been elected and qualified or until their earlier resignation, removal from
office, or death. If initial directors are not named in the Articles of
Incorporation, the incorporators, at the call of a majority of them, shall (i)
elect directors and complete the organization of the corporation; or (ii) elect
a board of directors who shall complete the organization of the corporation.
Each director thereafter elected shall hold office for the term for which he is
elected and until his successor shall have been elected and qualified or until
his earlier resignation, removal from office, or death.
Section 7. Vacancies. Any vacancy occurring in the Board of Directors,
including any vacancies created by reason of an increase in the number of
directors, may be filled by the shareholders. A director elected to fill a
vacancy shall hold office only until the next election of directors by the
shareholders.
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Section 8. Removal of Directors. At a meeting of shareholders called
expressly for that purpose, any director or the entire Board of Directors may be
removed, with or without cause, by a vote of the holders of a majority of the
shares then entitled to vote at an election of directors.
Section 9. Quorum and Voting. A majority of the number of directors fixed
by these Bylaws shall constitute a quorum for the transaction of business. The
act of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 10. Executive and Other Committees. The Board of Directors, by
resolution adopted by a majority of the full 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 the authority of the Board of Directors except as is provided by
law.
Section 11. Place of Meeting. Regular and special meetings of the Board of
Directors shall be held at the principal place of business of the Corporation or
at such other place as may be designated by the President either within or
without the State of Florida.
Section 12. Time, Notice and Call of Meetings. The annual meeting of the
Board of Directors shall be held immediately following the annual meeting of
shareholders; special meetings shall be held at such times as the Board of
Directors may determine. Written notice of the time and place of meetings of the
Board of Directors, other than the annual meeting, shall be given to each
director by either personal delivery, telegraph, teletype or other form of
electronic communication, at least three (3) days before the meeting or by
notice mailed to the director at least ten (10) days before the meeting.
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Notice of a meeting of the Board of Directors need not be given
to any director who signs a waiver of notice either before or after the meeting.
Attendance of a director at a meeting shall constitute a waiver of notice of
such meeting and waiver of any and all objections to the place of the meeting,
the time of the meeting, or the manner in which it has been called or convened,
except when a director states, at the beginning of the meeting, any objection to
the transaction of business because the meeting is not lawfully called or
convened.
Neither the business to be transacted at, nor the purpose of,
any annual or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the Board of Directors to another time and
place. Notice of any such adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
Meetings of the Board of Directors may be called by the
Chairman of the Board, the President of the Corporation or by any two directors.
Members of the Board of Directors may participate in a meeting of such Board by
means of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other at the same
time. Participation by such means shall constitute presence in person at a
meeting.
Section 13. Action Without A Meeting. Any action required to be taken at a
meeting of the Board of Directors, or any action which may be taken at a meeting
of Board of Directors or a committee thereof, may be taken without a meeting if
a consent in writing, setting forth the action so to be taken and signed by all
the directors or all the members of the committee, as the case may be, is filed
in the minutes of the proceedings of the Board or of the committee. Such consent
shall have the same effect as a unanimous vote.
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ARTICLE III
OFFICERS
Section 1. Officers. The officers of the Corporation shall consist of a
President, a Secretary, and a Treasurer, each of whom shall be elected by the
Board of Directors. Such other officers, assistant officers, and/or agents, as
may be deemed necessary, may be elected or appointed by the Board of Directors
from time to time, and the duties required by each such office or position shall
be decided and delineated by the Board of Directors. Any two or more offices may
be held by the same person. The Board of Directors shall have authority to fix
the compensation of officers.
Section 2. Duties. The officers of this Corporation shall have the
following duties:
The President shall be the chief executive officer of the
Corporation; shall have general and active management of the business and
affairs of the Corporation subject to the directions of the Board of Directors,
and shall preside at all meetings of the shareholders and Board of Directors.
The Secretary shall have custody of, and maintain, all of the
corporate records except the financial records; shall record the minutes of all
meetings of the shareholders and Board of Directors; send all notices of all
meetings, and perform such other duties as may be prescribed by the Board of
Directors or the President.
The Treasurer shall have custody of all corporate funds and
financial records; shall keep full and accurate accounts of receipts and
disbursements and render accounts thereof at the annual meetings of shareholders
and whenever else required by the Board of Directors or the President, and shall
perform such other duties as may be prescribed by the Board of Directors or the
President.
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Section 3. Removal of Officers. An officer or agent elected or appointed by
the Board of Directors may be removed, with or without cause, by the Board
whenever in its judgment the best interests of the Corporation will be served
thereby. Any vacancy in any office created thereby or otherwise arising may be
filled by the Board of Directors.
ARTICLE IV
STOCK CERTIFICATES
Section 1. Issuance. Every holder of shares in the Corporation shall be
entitled to have a certificate representing all shares to which he is entitled.
No certificate shall be issued for any share until such share is fully paid.
Section 2. Form. Certificates representing shares in the Corporation shall
be signed by the President or a Vice President and the Secretary or an Assistant
Secretary and may be sealed with the seal of the Corporation or a facsimile
thereof.
Section 3. Transfer of Stock. The Corporation shall register a stock
certificate presented to it for transfer if the certificate is properly endorsed
by the holder of record or by his duly authorized attorney.
Section 4. Lost, Stolen, or Destroyed Certificates. If the shareholder
shall claim to have lost or destroyed a certificate of shares issued by the
Corporation, a new certificate shall be issued upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed and, at the discretion of the Board of Directors, upon the deposit
of a bond or other indemnity in such amount and with such sureties, if any, as
the Board may reasonably require.
ARTICLE V
BOOKS AND RECORDS
Section 1. Books and Records. The Corporation shall keep correct and
complete books and records of account and shall keep minutes of the proceedings
of its shareholders, Board of Directors and committees.
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The Corporation shall keep, at its registered office or
principal place of business, a record of its shareholders giving the names and
addresses of all shareholders and the number of the shares held by each.
Any books, records and minutes may be in written form or in any
other form capable of being converted into written form within a reasonable
time.
Section 2. Shareholder's Inspection Rights. Any person who shall have been
a holder of record of shares or of voting trust certificates therefor, upon
written notice of his demand stating the purpose thereof at least 5 business
days before the date on which the shareholder wishes to inspect and copy, shall
have the right to examine, in person or by agent or attorney, records of
accounts, minutes and records of shareholders and to make extracts therefrom.
Section 3. Financial Information. Not later than four (4) months after the
close of each fiscal year, the Corporation shall prepare a balance sheet showing
in reasonable detail the financial condition of the Corporation as of the close
of its fiscal year, and a profit and loss statement showing the results of the
operations of the Corporation during its fiscal year.
Upon the written request of any shareholder or holder of voting
trust certificates for shares of the Corporation, the Corporation shall mail to
each shareholder or holder of voting trust certificates a copy of the most
recent balance sheet and profit and loss statement.
The balance sheets and profit and loss statements shall be
filed in the principal place of business of the Corporation in Florida; shall be
kept for at least three (3) years, and shall be subject to inspection during
business hours by any shareholders or holder of voting trust certificates, in
person or by agent.
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ARTICLE VI
DIVIDENDS
The Board of Directors of the corporation may, from time to time, declare,
and the Corporation may pay dividends on its shares in cash, property or its own
shares, except when the Corporation is insolvent or when the payment thereof
would render the Corporation insolvent, subject to the limitations and
restrictions imposed by the provisions of the Florida Statutes.
ARTICLE VII
CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be in
circular form and include the name of the Corporation and the year and state of
incorporation.
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board of
Directors.
ARTICLE IX
AMENDMENTS
These Bylaws may be altered, amended, repealed, or added to by vote of the
Board of Directors of this Corporation at any regular meeting of the Board, or
at a special meeting of directors called for that purpose. These Bylaws, and any
amendments thereto, and any new Bylaws added by the Board of Directors, may be
amended, altered or replaced by the shareholders at any annual or special
meeting of the shareholders.
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ARTICLE X
INDEMNIFICATION
Section 1. Actions in General. The Corporation shall indemnify any person
who was or is party or is threatened to be made a party to any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, or is or was serving at
the request of the Corporation as a trustee or administrator or in any other
fiduciary capacity under any pension, profit sharing, deferred compensation or
other plan, or any employee welfare benefit plan of the Corporation. The
indemnification shall be against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by such person in connection with the action, suit, or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit, or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that such person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
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Section 2. Action By or In Right of Corporation. The Corporation 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, suit or proceeding by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or is or was serving as a trustee or
administrator or in any other fiduciary capacity under any pension, profit
sharing, deferred compensation or other plan, or any employee welfare benefit
plan of the Corporation. The indemnification shall be against expenses
(including attorneys' fees) reasonably incurred by him in connection with the
defense and settlement of the action or suit, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, except that no indemnification shall be made in respect of any
claim, issue, or matter as to which the person has been adjudged to be liable
for negligence or misconduct in the performance of his duty to the Corporation,
unless (and only to the extent that) the court in which the action or suit was
brought, or a court of equity in the county in which the Corporation has its
principal office, determines upon application that, despite the adjudication of
liability but in view of all circumstances of the case, the person is fairly and
reasonably entitled to indemnity for the expenses which the court shall deem
proper.
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Section 3. Determination that Indemnification is Proper. Any
indemnification under Sections 1 or 2 of this Article (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee,
agent, trustee, administrator or other fiduciary is proper in the circumstances
because he has met the applicable standard of conduct set forth in said Sections
1 or 2. The determination shall be made (1) by the Board of Directors by a
unanimous vote of all of the directors then in office who were not parties to
the action, suit or proceeding, or, (2) if the disinterested directors so
direct, the determination of the propriety of any indemnification under this
Article shall be made, in a written opinion, by independent legal counsel,
(i.e., a lawyer who is not a director, officer, employee or agent of the
Corporation or such other corporation, partnership, joint venture, trust or
other enterprise, or is not or was not serving at the request of the Corporation
as a trustee or administrator or in any other fiduciary capacity under any
pension, profit sharing, deferred compensation or other plan, or any employee
welfare benefit plan of the Corporation, and who is not a partner or
professional associate of any director, officer, employee or agent of the
Corporation or such other corporation, partnership, joint venture, trust or
other enterprise), or (3) by the unanimous vote of all disinterested
shareholders.
Section 4. Indemnification Against Expenses Incurred in Successful Defense.
Unless otherwise expressly provided by the Articles of Incorporation of the
Corporation, to the extent that a director, officer, employee, agent, trustee,
administrator or other fiduciary of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
Sections 1 or 2, or in defense of any claim, issue, or matter therein mentioned,
he shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith; no determination
pursuant to Section 1 shall be required in such instance.
Section 5. Payment of Expenses in Advance of Final Disposition of Action.
Expenses (including attorneys' fees) incurred in defending a civil or criminal
action, suit, or proceeding shall be paid by the Corporation in advance of the
final disposition thereof if authorized in the specific case by a preliminary
determination, following the procedures set forth in Section 3, that there is a
reasonable basis for a belief that the director, officer, employee, agent,
trustee, administrator or other fiduciary met the applicable standard of conduct
set forth in Sections 1 or 2, but only upon receipt of an undertaking by or on
behalf of the director, officer, employee, agent, trustee, administrator or
other fiduciary reasonably assuring that such amount will be repaid unless it
shall ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article.
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Section 6. Non-Exclusive Right to Indemnity Inures to Benefit of Heirs and
Personal Representatives. The foregoing rights of indemnification shall be in
addition to all rights to which any such director, officer, employee, agent,
trustee, administrator or other fiduciary may be entitled as a matter of law,
and shall continue as to a person who has ceased to be such a director, officer,
employee, agent, trustee, administrator or other fiduciary and inure to the
benefit of the heirs and personal representatives of such person.
Section 7. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
is or was serving at the request of the Corporation as a trustee or
administrator or in any other fiduciary capacity under any pension, profit
sharing, deferred compensation or other plan, or any employee welfare benefit
plan of the Corporation, against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether or
not the Corporation would have the power or would be required to indemnify him
against the liability under the provisions of this Article or of the laws of
this State.
Section 8. Gender. Whenever used in this Article X, the masculine gender
shall include the feminine and neuter genders.
ARTICLE XI
SPECIAL CORPORATE ACTS
Section 1. Execution of Written Instruments. Unless otherwise specifically
determined by the Board of Directors or otherwise required by law, formal
contracts of the corporation, promissory notes, leases, deeds, mortgages,
assignments, satisfactions and other evidence of indebtedness of the
corporation, and other corporate instruments or documents, shall be executed,
signed or endorsed by the President or any Vice President or chief executive
officer and sealed with the corporate seal of the corporation.
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ARTICLE XII
LONG TERM EMPLOYMENT CONTRACTS
The Board of Directors may authorize the corporation to enter into
employment contracts with any executive officer for periods longer than one year
and any charter or bylaw provision for annual election shall be without
prejudice to contract rights, if any, of the executive officer under such
contracts.
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CONSENT OF SHAREHOLDERS IN LIEW OF MEETING
GOLDENACCESS.COM, INC.
August 26, 1999
The undersigned, being all the shareholders of GOLDENACCESS.COM, INC. a
Florida corporation ("the Corporation"), hereby consent to the taking of the
following action in lieu of meeting and hereby waive any notice required to be
given in connection therewith:
RESOLVED that the plan and agreement of merger between the Corporation and
CathTech Group, Inc. as approved by the Board of Directors of the Corporation,
is hereby advised, authorized and approved as to form and substance.
Effective as of August 26, 1999.
-------------------------
Cliffor Pierce
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CONSENT OF SHAREHOLDERS IN LIEW OF MEETING
GOLDENACCESS.COM, INC.
August 26, 1999
The undersigned, being all the shareholders of GOLDENACCESS.COM, INC. a
Florida corporation ("the Corporation"), hereby consent to the taking of the
following action in lieu of meeting and hereby waive any notice required to be
given in connection therewith:
RSOLVED that the plan and agreement of merger between the Corporation and
CathTech Group, Inc. a Florida corporation, attached as an exhibit to this
resolution, is hereby approved as to form and substance.
RESOLVED that the terms and conditions of the plan and agreement of merger,
as attached hereto, are advised, authorized and approved. The president and/or
the vice president of the Corporation are hereby authorized and directed to
submit the plan and agreement to merger to the shareholders of the Corporation
entitled to vote theron, such vote to be taken at a special meeting or by
unanimous written consent as the president and/or vice president may direct.
RESOLVED that the president and/or vice of the Corporation are hereby
authorized and directed to execute the plan and agreement of merger, articles of
merger, and any related documents and to take all such actions as reuired to
complete the transaction contemplated by the plan and agreement of merger.
Effective as of August 26, 1999
--------------------------------
123 Clifford Pierce
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JOINT WRITTEN CONSENT OF
SOLE SHAREHOLDER AND SOLE DIRECTOR
OF GOLDENACCESS.COM, INC.
IN LIEU OF SPECIAL MEETING
The undersigned, being the sole shareholder and sole director of
GOLDENACCESS.COM, INC., a Florida corporation (the "Corporation"), hereby
consents, in lieu of a special meeting and pursuant to Sections 607.0704 and
607.0821 of the Florida Business Corporation Act, to the adoption of the
following resolutions, and directs the Secretary of the Corporation to file this
Consent in the minute book of the Corporation:
WHEREAS, the Corporation desires to purchase from Clifford Y. Pierce
("Pierce"), and Pierce desires to sell to the Corporation, pursuant to an
Agreement For Sale And Purchase of Assets in the form attached hereto as EXHIBIT
A (the "Agreement"), certain assets owned by Pierce, in exchange for 2,166,700
shares of common stock of the Corporation.
NOW, THEREFORE, BE IT RESOLVED, that the officers of the Corporation
are hereby authorized and directed to execute and deliver to Pierce the
Agreement, and to take such other action and execute, file and deliver
such other documents as, in their judgment, are necessary or appropriate
in order to carry out the above-referenced transaction.
Dated as of July , 1999
Clifford Y. Pierce
Being the sole shareholder and
sole director of the Corporation
[bks] W:\52206\MINUTE23.BKS
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CLOSING AUTHORIZATION
Having completed all the necessary documents to effect the Closing of
the transaction, we hereby authorize Ross, Forster, Scillia & Brooks, Inc. to
effect the closing, and hereby instruct Casoria & Goff, P.A. as Escrow Agents,
to consummate the closing with GoldenAccess.com, Inc. ("GAC"), as of today,
August 26, 1999. Cardiac Control Systems, Inc. ("CCS") will provide Casoria &
Goff, P.A. with separate instructions as to the wiring of funds to CCS as
those funds become available and cleared in their escrow account.
Escrow agent shall continue to hold the GAC stock certificate as
collateral.
IN WITNESS WHEREOF, the parties have approved and executed this agreement
as of the effective date stated above.
GOLDENACCESS.COM, INC. CARDIAC CONTROL SYSTEMS, INC.
- ------------------------------ ------------------------------
Clifford Pierce, President Alan J. Rabin, President
125
<PAGE>
CERTIFICATE OF AUTHORIZATION
OF STOCK ISSUANCE
The undersigned, being the President and Secretary of GOLDENACCESS.COM,
INC., a Florida Corporation ("the Corporation"), hereby certifies that 50 shares
of Common stock issued in the name of Cardiac Control Systems, Inc. are validly
authorized and issued shares of the Corporation.
Effective as of August 24, 1999
-----------------------------
Clifford Pierce
126
<PAGE>
CLOSING AUTHORIZATION
Having completed all the necessary documents to effect the Closing of the
transaction, we hereby authorize Ross, Forster, Scillia & Brooks, Inc. to effect
the closing, and hereby instruct Casoria & Goff, P.A. as Excrow Agents, to
consummate the closing with GoldenAccess,cim, In.c ("GAC") as of today, August
26, 1999. Cardiac Control Systems, Inc. ("CCS") will provide Casoria & Goff,
P.A. with separate instructions as to the wiring of funds to CCS as those funds
become available and clcared in their escrow account.
Escrow agent shall continue to hold the GAC stock certificate as
collateral.
IN WITNESS WHEREOF, tje parties have approved and executed this agreement
as of the effective date stated above.
GOLDENACCESS.COM, INC. CARDIAC CONTROL SYSTEMS,INC.
- ------------------------------- ----------------------------
Clifford Pierce, President Alan J. Rabin, President
127
<PAGE>
CONSENT OF DIRECTORS IN LIEU OF MEETING
GOLDENACCESS.COM, INC.
August 18, 1999
The undersigned, being all the directors of GOLDENACCESS.COM, INC., a
Florida Corporation ("the Corporation"), hereby consent to the taking of the
following action in lieu of meeting and hereby waive any notice required to be
given in connection therewith.
RESOLVED that the plan and agreement of merger between the Corporation and
CathTech Group, Inc., a Florida corporation, attached as an exhibit to this
resolution, is hereby approved as to form and substance.
RESOLVED that the terms and conditions of the plan and agreement of
merger, as attached hereto, are hereby advised, authorized and approved. The
president and/or the vice president of the Corporation are hereby authorized and
directed to submit the plan and agreement to merger to the shareholders of the
Corporation entitled to vote thereon, such vote to be taken at a special meeting
or by unanimous written consent as the president and/or vice president may
direct.
RESOLVED that the president and/or vice president of the Corporation are
hereby authorized and directed to execute the plan and agreement of merger,
articles of merger, and any related documents and to take all such actions as
required to complete the transaction contemplated by the plan and agreement of
merger.
Effective as of August 18, 1999
-----------------------------
Clifford Pierce
128
<PAGE>
CONSENT OF SHAREHOLDERS IN LIEU OF MEETING
GOLDENACCESS.COM, INC.
August 18, 1999
The undersigned, being all the shareholders of GOLDENACCESS.COM, INC., a
Florida corporation ("the Corporation"), hereby consent to the taking of the
following action in lieu of meeting and hereby waive any notice required to be
given in connection therewith:
RESOLVED that the plan and agreement of merger between the Corporation and
CathTech Group, Inc., as approved by the Board of Directors of the Corporation,
is hereby advised, authorized and approved as to form and substance.
Effective as of August 18, 1999
-----------------------------
Clifford Pierce
129
<PAGE>
WRITTERN CONSENT
OF SOLE DIRECTOR
OF GOLDENACCESS.COM, INC.
IN LIEU OF SPECIAL MEETING
The undersigned, being the sole director of GOLDENACCESS.COM, INC., a Florida
corporation ( the `Corporation' ), hereby consents, in lieu of a special
meeting and pursuant to section 607.0821 of the Florida Business Corporation
Act, to the adoption of the following resolutions, and directs the Secretary of
the Corporation to file this consent in the minute book of the Corporation:
WHEREAS, Clifford Pierce ("Pierce"), the sole stockholder of the
Corporation, has made loans to the Corporation aggregating the principal amount
of $54,592.00 (collectively, the "Loans").
WHEREAS, Pierce desires to contribute the Loans to the corporation as a
capital contribution.
NOW, THEREFORE, BE IT RESOLVED, that the Corporation hereby accepts the
contribution of the Loans and directs the Corporation's accountant to record
said transaction as a contribution to the capital of the Corporation.
Dated as of the day of July ,1999
Clifford Y. Pierce, as sole director
of the Corporation
130
<PAGE>
WRITTEN CONSENT AND RECORD OF ACTION
TAKEN BY
SOLE DIRECTOR AND SOLE SHAREHOLDER
OF
GOLDENACCESS.COM, INC.
The undersigned, being the sole director and all of the shareholder of
Goldenacess.com, Inc. (the "Corporation") hereby set forth their written consent
and record of action which they hereby take this 21st day of June 1999, in
accordance with the Florida Business Corporation Act.
RESOLVED: that the Corporation's Articles of Incorporation be amended to
increase the number of authorized shares of capital stock of the Corporation
from 100,000 shares of no par value common capital stock to 100,000,000 shares
without par value; and it is further
RESOLVED: that the officer of the Corporation is hereby authorized to file
the appropriate amendment of the Articles of Incorporation of the Corporation
with the Secretary of State of Florida.
--------------------------------------------
Clifford Pierce, sole director
--------------------------------------------
Clifford Pierce, 4000 shares
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131
<PAGE>
WRITTEN CONSENT AND RECORD OF ACTION
TAKEN BY
SOLE DIRECTOR
OF
GOLDENACCESS.COM, INC.
The undersigned, being the sole director of Goldenaccess.com, Inc. (the
"Corporation") hereby sets forth his written consent and record of action taken
this 8th day of November 1998 in accordance with the provisions of the Florida
Business Corporation Act.
RESOLVED: that the Corporation register the fictitious name " Golden Air
Club"; and it is further
RESOLVED: that the officer of the Corporation is hereby authorized to make
appropriate filings in connection therewith with the office of the Secretary
of State of Florida.
--------------------------------------
Clifford Pierce, sole director
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132
<PAGE>
NOMINEE AND AGENCY AGREEMENT
DATED
AS OF JULY 1, 1997
GOLDENACCESS.COM, INC., a Florida corporation with an address at 1440 John
F. Kennedy Causeway, Suite 301, North Bay Village, Florida 33141
("Nominee/Agent")
JOSMARU, LTD., INC., a Florida corporation with an address at 1440 John F.
Kennedy Causeway, Suite 301, North Bay Village, Florida 33141 ("Principal")
W I T N E S S E T H
WHEREAS Principal wishes to sell its goods and services in a broad market,
some of which is not available to it; and
WHEREAS such market is available to Nominee/Agent; and
WHEREAS Principal and Nominee/Agent are affiliates; and
WHEREAS Nominee/Agent is willing to act as the Nominee of Principal in making
certain sales of goods and services which sales would otherwise not be available
to the Principal, in Nominee/Agent's sole name but for the sole benefit of the
Principal
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and
for other good and valuable consideration, receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
1. Nominee/Agent agrees to make such sales as Principal may direct, in
Nominee/Agent's sole name (the "Sales").
2. Principal will supply all of the goods and services for the Sales at its
sole expense.
3. Nominee/Agent will promptly remit to Participant all collections on
billings for the Sales which are received by it.
4. Nominee/Agent will record the receipt of proceeds of the Sales
transactions in an "Exchange Account" which will result in no income or expense
to it.
5. Principal will report the Sales on its federal corporate income tax
return ( and such state or other local government tax returns as may be
applicable) as if made by it in its own name, and will hold harmless the
Nominee/Agent from any claim for any such tax.
133
<PAGE>
6. Nominee/Agent shall not be required to advance any funds for Principal,
nor to take any legal steps to collect the proceeds of the Sales unless directed
to do so by Principal, with Principal bearing the entire expense thereof.
7. Principal and Agent do not assume any further responsibility or
liability to each other in connection with the Sales, other than as set forth
herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
Goldenaccess.Com, Inc.
By:_________________________
Clifford Pierce, President
JosMaru, Ltd., Inc.
By:__________________________
Clifford Pierce, President
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134
<PAGE>
WRITTEN CONSENT AND RECORD OF ACTION
TAKEN BY
SOLE DIRECTOR
OF
GOLDENACCESS.COM, INC.
The undersigned, sole director of Goldenaccess.com, Inc. (the
"Corporation") hereby sets forth his written consent and record of action which
he takes as of the 1st day of July, 1997, in accordance with the provisions of
the Florida Business Corporation Act.
RESOLVED that it is in the best interests of the Corporation to enter into
a Nominee and Agency Agreement with its affiliate corporation, Jos Maru, Ltd.,
Inc., in the form attached hereto, in order to assist its affiliate in
increasing its sales capabilities; and it is further
RESOLVED that the officer of the Corporation is authorized to execute such
agreement on behalf of the Corporation.
------------------------------
Clifford Pierce, sole director
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135
<PAGE>
WRITTEN CONSENT AND RECORD OF ACTION
TAKEN BY
SOLE INCORPORATOR
OF
GOLDENACCESS.COM, INC.
The undersigned, being the sole incorporator of Goldenaccess.com, Inc. (the
"Corporation"), does hereby set forth his written consent and record of action
which he hereby takes this 14th day of June, 1997, in accordance with the
provisions of the Florida Business Corporation Act.
The following person is hereby elected director of the Corporation to serve
until his successors shall have been elected and qualified:
Clifford Pierce
------------------------------
Clifford Pierce,
Sole Incorporator
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136
<PAGE>
WRITTEN CONSENT AND RECORD OF ACTION
TAKEN BY SOLE INITIAL DIRECTOR OF
GOLDENACCESS.COM, INC.
The undersigned sole initial director of GOLDENACCESS.COM, INC. (the
"Corporation"), hereby sets forth his written consent to and record of action
which he hereby takes this 14th day of June, 1997, in accordance with the
provisions of the Florida Business Corporation Act.
1. The Articles of Incorporation of the Corporation were filed in the
office of the Secretary of State of Florida on June 13, 1997, and the filing
fee and taxes incident to the incorporation of the Corporation have been paid.
A certified copy of the Articles of Incorporation shall be placed in the
Minute Book of the Corporation.
2. A set of proposed Bylaws for the Corporation have been prepared by
counsel. I have read and considered the proposed Bylaws, clause by clause.
The proposed Bylaws are adopted as the Bylaws of the Corporation. The Bylaws
shall be placed in the Minute Book of the Corporation. 3. The following persons
are hereby nominated and elected officers of the Corporation to serve until
their successor is elected and qualified.
- ----------------------------------------------------------------
CLIFFORD PIERCE - President
- ----------------------------------------------------------------
- ----------------------------------------------------------------
CLIFFORD PIERCE - Secretary/Treasurer
- ----------------------------------------------------------------
4. A form of certificate for the Corporation's common stock, without par
value(the "Common Stock"), is hereby adopted and approved. The form of
certificate for the Common Stock of the Corporation shall be placed in the
Minute Book of the Corporation.
5. A form of seal of the Corporation is hereby adopted. An impression of
the seal follows:
137
<PAGE>
-40-
6. The Treasurer is hereby authorized, empowered and directed to open an
account or accounts for the Corporation with such banks as the Treasurer may
determine, and deposit therein all funds of the Corporation. All drafts, checks
and notes of the Corporation, payable on said account or accounts to be made in
the corporate name, may be signed by the President or an authorized signatory of
the Corporation. A copy of the printed form of each bank's resolution shall be
placed in the Minute Book of the Corporation.
7. I have been advised by counsel that the provisions of section 1244 of
the Internal Revenue Code of 1954, as amended, (the "Code") permits ordinary
loss treatment when either the holder of stock issued in accordance with section
1244 ("1244 Stock") sells or exchanges such stock at a loss or when such stock
becomes worthless. The following preamble and plan have been submitted to the
Corporation by counsel:
WHEREAS, the tax laws of the United States have undergone
substantial changes under the Tax Reform Act of 1976, the 1977
Technical Corrections Act and other acts passed by Congress, and
WHEREAS, prior to the Revenue Act of 1978, section 1244 of the
Code and the regulations issued thereunder required that common stock
of a corporation be issued pursuant to a written plan adopted by the
corporation after June 30, 1958, which plan was required to offer only
such common stock during a period specified in the plan ending not
later than two years after the plan was adopted, and
WHEREAS, prior to the Revenue Act of 1978, section 1244 and the
regulations issued thereunder further required that the plan
specifically state, in terms of dollars, the maximum amount to be
received by the corporation in consideration of the stock to be issued
pursuant thereto and that such stock must be issued only for money or
property (other than stock or securities), and
WHEREAS, this corporation qualifies as a small
business corporation as defined in section 1244, but
WHEREAS, the directors are concerned that future legislation,
case law, rulings, or other governmental action might modify section
1244 as presently enacted (subsequent to the Revenue Act of 1978) and
thus desires to safeguard this corporation's 1244 election by
complying with prior law as well as present law, and
138
<PAGE>
WHEREAS, pursuant to the requirements of section 1244 and the
regulations issued thereunder, the following plan has been submitted
to the corporation by the board of directors of the corporation:
1. The plan as hereafter set forth shall, upon its adoption by the
directors of the corporation, immediately become effective.
2. No more than 10,000 shares of common stock are authorized to be issued
under this plan, such stock to have a par value of $1 per share.
3. Stock authorized under this plan shall be issued only in exchange for
money, or property susceptible to monetary valuation other
than capital stock, securities or services rendered or to
be rendered. The aggregate dollar amount to be received
for such stock shall not exceed $1,000,000, and the sum of
such aggregate dollar amount and the equity capital of the
corporation (determined on the date of adoption of the
plan) shall not exceed $1,000,000.
4. Any stock options granted during the life of this plan which apply to
the stock issuable hereunder shall apply solely to such stock and to
no other and must be exercised within the period in which the plan is
effective.
5. Such other action as may be necessary shall be taken by the
corporation to qualify the stock to be offered and issued under this
plan as "1244 Stock," as such term is defined in the Code and the
regulations issued thereunder.
NOW, THEREFORE, IT IS HEREBY RESOLVED: that the foregoing plan to
issue section 1244 Stock is hereby adopted by the corporation and each
appropriate officer of the corporation is hereby individually
authorized and directed to take all actions deemed by him necessary to
carry out the intent and purpose of the recited plan.
8. The officers of the Corporation be and they hereby are directed to apply
for and obtain any and all permits and licenses that the Corporation may
need in the operation of its business, and in connection therewith to pay
all fees and costs therefor.
9. The Corporation has received a subscription from the following named
Persons to purchase shares of Common Stock in exchange for the price per
share, payable as set forth below, under the Plan To Issue Section 1244
Stock previously adopted by the Corporation:
139
<PAGE>
-------------------------- ------------ --------------------------
Name of Subscriber Shares Price Per Share
-------------------------- ------------ --------------------------
-------------------------- ------------ --------------------------
Clifford Pierce and Sue 4000 $1.50
Owen Pierce, joint
tenants with right of
survivorship
-------------------------- ------------ --------------------------
10. The subscription of Clifford Pierce and Sue Owen Pierce is hereby
accepted by the Corpation. The officers of the Corporation are hereby authorized
and directed to issue 4,000 shares of Common Stock to them in accordance with
their subscription.
11 Upon payment to the Corporation by Clifford Pierce and Sue Owen Pierce
of the amount of their subscription for shares of the Corporation's Common
Stock, such shares shall be fully paid and non-assessable.
12 I have been advised by counsel of the availability of electing the
provisions of section 248 of the Code, which permits the treatment of certain
organizational expenditures as deferred expenses over a five (5) year period or
greater length of time. The following preamble has been submitted to the
Corporation by counsel:
WHEREAS, section 248 of the Code and the regulations issued
thereunder require a corporation to affirmatively elect to treat
certain organizational expenses as deferred expenses over a period of
not less than 60 months, and
WHEREAS, said minimum 60 month period described herein must begin
with the month in which the corporation commences its business as is
further defined in Section 248 of the Code and the regulations issued
thereunder, and
WHEREAS, the directors of this corporation are
desirous of utilizing the election herein described,
NOW THEREFORE IT IS HEREBY RESOLVED: that the corporation hereby
elects to amortize its organizational expenditures over a period of 60
months commencing with the month of March, 1995 and the President and
each other officer of this corporation is hereby individually
authorized and directed to prepare an appropriate statement electing
such treatment and to attach said statement to the corporation's
return for the 1995 taxable year.
140
<PAGE>
It WAS FURTHER RESOLVED, that the Board of Directors be and it
hereby is authorized, in its discretion, to issue the capital stock of
this corporation to the full amount or number of shares authorized by
the Certificate of Incorporation in such amounts and for such
considerations as from time to time shall be determined by the Board
of Directors and as may be permitted by law, provided, however, that
par value stock shall not be issued for less than par.
CLIFFORD PIERCE, Sole Initial Director
141
<PAGE>
June 14, 1997
Board of Directors of
Goldenaccess.com, Inc.
The undersigned does hereby subscribe for 4,000 shares of the common capital
stock (no Par value) of the Corporation in exchange for $6,000.00 in cash and
the intangible personal property more particularly described on Exhibit A
attatched hereto.
-------------------------------------
Clifford Y. Pierce for
Clifford Y. Pierce and Sue Owen Pierce as
joint tenants with rights of
survivorship
Subscription accepted
Goldenaccess.com, Inc.
By:_______________________
Clifford Y. Pierce, Pres.
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<PAGE>
WRITTEN CONSENT
OF SOLE DIRECTOR
OF GOLDENACCESS.COM, INC.
IN LIEU OF SPECIAL MEETING
The undersigned, being the sole director of GOLDENACCESS.COM, INC., a
Florida corporation (the "Corporation"), hereby consents, in lieu of a special
meeting and pursuant to Section 607.0821 of the Florida Business Corporation
Act, to the adoption of the following resolutions, and directs the Secretary of
the Corporation to file this Consent in the minute book of the Corporation:
WHEREAS, Clifford Y. Pierce is the sole director of the Corporation;
WHEREAS, the Board desires to approve an amendment of the By-Laws to allow
for the indemnification of Officers and Directors within the scope of the
Florida General Corporation Law as well as approve a classified Board of
Directors.
WHEREAS, the Corporation desires to provide a Classified Board of
Directors, meaning that only approximately one-third of the Corporation's
Directors will be subject to re-election at each annual stockholder meeting.
These provisions could discourage takeover attempts and could materially
adversely affect the price of the Corporation's stock.
RESOLVED, by the Board of Directors of the Corporation that:
AMENDMENT TO THE BY-LAWS
1. Article II, Section 2, modified that at each annual meeting, the
shareholders shall elect those Directors whose terms are expiring;
2. Article II, Section 3, modified that the term of office of each
Director shall be
At least, 1 Director elected for 1-year term; At least, 2 Directors
elected for 2-year terms; At least, 2 Directors elected for 3-year
terms.
WHEREAS, after the effective date of the Corporation's registration
statement, the Board of Directors will have the authority to issue up to
1,000,000 shares of preferred stock. Moreover, without any further vote or
action on the part of the stockholders, the Board of Directors will have the
authority to determine the price, rights, preferences, privileges and
restrictions of the preferred stock.
RESOLVED, that the Board of Directors be and it hereby is authorized, in
its discretion, to determine the price, rights, preferences, privileges and
restrictions of the future issuance of preferred stock.
143 <PAGE>
INDEMNIFICATION OF OFFICERS AND DIRECTORS
WHEREAS, the Corporation desires to indemnify, to the fullest extent under
Florida law, the Directors and Officers against certain liabilities incurred
with respect to their service in such capabilities. The following preamble and
plan has been submitted:
a. Section 607.0850 of the Florida Business Corporation Act empowers a
corporation to indemnify its Directors and Officers and to purchase
insurance with respect to liability arising out of their capacity or status
as Directors and Officers provided that this provision shall not eliminate
or limit the liability of a Director (i) for any breach of the Director's
duty to loyalty to the corporation or its stockholders (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) arising under Section 607.0850 of the
Florida Business Corporation Act, or (iv) for any transaction from which
the Director derived an improper personal benefit.
b. The Florida Business Corporation Act provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any
other rights to which the Directors and Officers may be entitled under the
Corporation's By-Laws, any agreement, vote of shareholders or otherwise.
c. Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers, or
persons controlling the Corporation pursuant to the foregoing provisions,
the Corporation has been informed that in the opinion of the Securities
and Exchange Commission, such indemnification is against public policy as
expressed in the act and is therefore unenforceable.
d. In the event that a claim for indemnification against such liabilities
(other than the payment by the Corporation of expenses incurred or paid
by a director, officer or controlling person in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
the Corporation will, unless in the opinion of the Company's counsel, the
matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of whether such indemnification
by it is against public policy as expressed in the Securities Act of 1933,
as amended, and we will be governed by the final adjudication of such case.
NOW, THEREFORE, IT IS HEREBY RESOLVED: that the foregoing plan to
indemnify the Officers and Directors is hereby adopted by
the Corporation and each appropriate Officer and Director
are hereby authorized and directed to take all actions
deemed by him necessary to carry out the intent and purpose
of the recited plan.
Dated as of:
Clifford Y. Pierce,
as sole director of the
Corporation
144
<PAGE>
WRITTEN CONSENT AND RECORD OF ACTION
TAKEN BY SOLE INITIAL DIRECTOR
OF GOLDENACCESS.COM, INC.
IN LIEU OF SPECIAL MEETING
The undersigned, being the sole director of GOLDENACCESS.COM, INC., a
Florida corporation (the "Corporation"), hereby consents, in lieu of a special
meeting and pursuant to Section 607.0821 of the Florida Business Corporation
Act, to the adoption of the following resolutions, and directs the Secretary of
the Corporation to file this Consent in the minute book of the Corporation:
WHEREAS, Clifford Y. Pierce is the sole director of the Corporation;
WHEREAS, the Corporation seeks the election and approval of its Board of
Directors;
RESOLVED, the number of Directors constituting the Board of Directors is
five (5), and the name of each person who is to serve as a member thereof is as
follows:
Directors elected for 1-year term: David Heath
Seymour Kantor
Directors elected for 2-year term: Nigel Gray
Paul Callihoo
Director elected for 3-year term: Clifford Y. Pierce
Dated as of:
Clifford Y. Pierce,
as sole director of the Corporation
145
<PAGE>
EXHIBIT 3.2A
BY-LAWS CATHTECH GROUP AND CERTIFICATION
146
<PAGE>
BY-LAWS
OF
CATHTECH GROUP, INC.
Adopted August , 1999
147
<PAGE>
BY-LAWS
ARTICLE I
SHAREHOLDERS
Section 1. Method of Acting. Any action of the shareholders of the
corporation may be taken without a meeting provided a resolution or a consent in
writing to the action in question is 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 shares entitled to vote
thereon were present and voted, and such resolution or consent is filed among
the records of the corporation. Such resolution or consent shall have the same
force and effect as a unanimous vote of the shareholders, but in any certificate
or documents filed with the Department of State of the State of Florida under
Chapter 607 of the Florida Statutes, the document or certificate shall state
that written consent, pursuant to Florida Statutes ss.607.0704, was given in
lieu of a meeting. Within ten (10) days after obtaining such authorization by
consent or resolution notice as required by ss.607.0704 of the Florida Statutes
shall be given to those shareholders who have not consented in writing.
Section 2. Annual Meetings. Meetings of the shareholders of the
corporation shall be held annually within three (3) months of the end of the
fiscal year on such date and at such time as may be fixed by the Board of
Directors, or if none has been fixed by the Board prior to the first day of said
month, then by the president. A meeting of the shareholders may occur under any
circumstances in which all participants in a meeting are able to converse with
one another, expressly including discussions by telephone or radio. Physical
presence of the participants at the same place is not necessary for a meeting.
The minutes of a meeting need not state whether all participants were present in
148 3
<PAGE>
person or not and the certificate of the secretary in the minutes that a meeting
was held and that named individuals were present shall be conclusive as against
any third party.
Section 3. Special Meetings. Special meetings of shareholders may be
called at any time by a majority of the directors of the corporation, the
holders of not less than one tenth (1/10) of all the shares entitled to vote at
the meeting, or by the president, upon the giving of notice as hereinafter
described.
Section 4. Notice. At least ten (10) days but not more than sixty (60)
days prior to any annual or special meeting, the corporation shall give notice
to each shareholder of record, such notice to contain a statement of the purpose
or purposes for which the meeting is being called and to be served personally or
sent by first class mail, postage pre-paid, to each of the shareholders of
record at his address as it appears on the transfer books of the corporation;
but at any meeting at which all shareholders shall be participants as defined in
Section 2 or at which shareholders not participants have waived notice in
writing, the giving of notice as above described shall not be required. Any
business may be acted upon at the annual meeting. Action taken on business at a
special meeting that is not reasonably related to the purpose or purposes as
specified in the notice for such special meeting shall be voidable as against
the non-participants provided such non-participants object in writing to the
corporation after learning of the action taken. When a meeting is adjourned to
another time or place, it shall not be necessary to give any notice of the
adjourned meeting if the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken. In order to
determine those shareholders entitled to notice of a meeting, the date on which
notice of the meeting is mailed shall be the record date. In order to determine
those shareholders entitled to vote at a meeting, the date on which notice of
the meeting is mailed shall be the record date if a notice is mailed, but if no
notice is mailed, the date of the meeting shall be the record date.
149
<PAGE>
Section 5. Quorum. A majority of the shares entitled to vote,
represented in person, by participation as described in Section 2 or by proxy,
shall constitute a quorum at a meeting of shareholders.
Section 6. Voting. Each outstanding share shall be entitled to one vote on
each matter submitted to a vote at a meeting of shareholders. At each election
for directors, every shareholder entitled to vote at such election shall have
the right to vote, in person or by proxy, the number of shares owned by him for
as many persons as there are directors to be elected at that time and for whose
election he has a right to vote.
Section 7. Order of Business. The order of business of all meetings of
the shareholders shall be as follows:
1. Roll call.
2. Proof of notice of meeting, or waiver of notice.
3. Transaction of business.
4. Adjournment.
ARTICLE II
DIRECTORS
Section 1. Number. The affairs and business of this corporation shall be
managed by a Board of Directors consisting of one or more members. The number of
Directors shall be fixed by the shareholders, but such number may be increased
or decreased by the Board of Directors.
150 4
<PAGE>
Section 2. How Selected. At each annual meeting, the shareholders shall
elect Directors to hold office until the next succeeding annual meeting,
provided, however, such election may be held in accordance with Section 1 of
Article I of these by-laws. In the event that Directors are not elected pursuant
to the provisions of Article I, Section 1, they shall be elected by a plurality
of votes cast at the annual meeting or any special meeting of shareholders held
for that purpose. Directors so appointed or elected shall constitute the Board
of Directors, which shall be referred to as a Board, whether consisting of one
or more than one member.
Section 3. Term of Office. The term of office of each Director shall be
one (1) year and until his successor shall have been elected and qualified or
until his earlier resignation, removal from office, or death.
Section 4. Duties. The Board of Directors shall have the control and
general management of the affairs and business of the corporation. Such
Directors shall act as a Board, by majority, and may adopt such rules and
regulations for the conduct of their meetings and the management of the
corporation as they may deem proper and which are not inconsistent with these
by-laws and the laws of the State of Florida. The Board of Directors may
designate a committee of the Board to prepare or present information, opinions,
reports, or statements, including financial statements and other financial data,
dealing with any facet of the affairs and business of the corporation.
Section 5. Method of Acting. The Board of Directors or any committee
thereof may take any and all actions relating to the conduct of the corporate
business by resolution or by written consent to the action in question, provided
such resolution or written consent is signed by all of the Directors, or all of
the members of the committee, as the case may be, and filed in the minutes of
the proceedings of the Board or of the committee. Such resolution or written
consent may be signed and filed either before or after the action in question is
taken and shall have the same effect as a unanimous vote.
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Section 6. Meetings. Annual or other regular meetings of the Directors of
the corporation are not required to be held. A meeting of the Board of Directors
may be called at any time by the chairman of the Board, by the president of the
corporation, or by any Director. Notice of such meeting shall be given to each
Director either by personal delivery or by mail, telegram or cablegram at least
two days before the meeting. Notice of a meeting of the Board of Directors need
not be given to any Director who signs a waiver of notice either before or after
the meeting or who attends the meeting and does not state at the beginning
thereof any objection which he may have to the transaction of business because
the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting. A meeting of the
Directors may occur under any circumstance in which all participants in the
meeting are able to converse with one another and expressly includes discussions
by conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other at the same time.
Participation by such means shall constitute presence in person at a meeting.
The minutes of a meeting need not state whether all participants were actually
present in person or present in person as provided above and the certificate of
the secretary in the minutes that a meeting was held and that the named
individuals were present shall be conclusive as against any third party.
Section 7. Quorum. A majority of the number of Directors fixed in
accordance with these by-laws shall constitute a quorum for the transaction of
business. In the event a quorum is not present, a majority of the Directors
present may adjourn any meeting of the Board of Directors to another time and
place. Notice of the time and place of any such adjourned meeting shall be given
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to the Directors who are not present at the time of the adjournment and to the
Directors who were present unless the time and place of the adjourned meeting
were announced at the time of adjournment.
Section 8. Voting. At all meetings of the Board of Directors, each
Director is to have one (1) vote and the majority vote of the Directors
present shall prevail.
Section 9. Vacancies. Any vacancy occurring in the Board of Directors,
including any vacancy created by reason of an increase of the number of
Directors, may be filled by the affirmative vote of a majority of the remaining
Directors even though the number of the remaining Directors may be less than a
quorum of the Board of Directors. A Director so elected to fill a vacancy shall
hold office until the next election of Directors by the shareholders.
Section 10. Removal of Directors. Any one or more of the Directors may be
removed either with or without cause at any time by unanimous resolution of the
shareholders or by a vote of the shareholders holding a majority of stock at any
special meeting called for such purpose. A Director may not be removed without a
special meeting or a unanimous resolution, notwithstanding the provisions of
Article I, Section 1 of these By-Laws.
Section 11. Responsibility of Board and Individual Directors to Collect,
Account For and Pay Over Taxes. Notwithstanding the generality of the powers
herein or elsewhere conferred upon the Board of Directors to manage the business
of this corporation, neither the Board as a board, nor an individual Director as
a director shall have an authority to collect, account for, or pay over any sums
of money as taxes imposed upon the corporation by any governmental authority,
whether municipal, county, state or federal.
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ARTICLE III
OFFICERS
Section 1. Number. The officers of this corporation shall be:
1. President
2. Secretary
3. Treasurer
4. Such other officers as the Board of Directors may from
time to time deem necessary for the proper conduct of
the corporation business.
Section 2. Selection. All officers of the corporation shall be appointed
by unanimous resolution of the Board of Directors or, in the alternative,
elected by majority vote of the directors present at a special meeting of
directors held for that purpose, and shall hold office for the term of one year
and thereafter until their successors are duly appointed or elected, as the case
may be.
Section 3. Duties. The duties and powers of the officers of the
corporation shall be as follows:
President
The president shall preside at all meetings of the Board of Directors and
shareholders.
He shall cause to be called special meetings of the shareholders and
directors in accordance with these by-laws.
He shall appoint and remove, employ and discharge, and fix the
compensation of all servants, agents, employees, and clerks of the corporation
other than the duly appointed officers, subject to the approval of the Board of
Directors.
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He shall sign and make all contracts and agreements in the name of the
corporation, and see that they are properly carried out.
He shall see that the books, reports, statements and certificates of the
corporation are properly kept, made and filed according to law.
He shall sign all certificates of stock notes, drafts, or bills of
exchange, warrants or other orders for the payment of money duly drawn by the
treasurer.
He shall enforce these by-laws and perform all the duties incident to the
position and office, and which are required by law.
He shall solely and personally be responsible for collecting, accounting
for, and paying over all taxes imposed upon the corporation by any governmental
authority, whether municipal, county, state or federal. This power is personal
and exclusive to the president and may not be delegated by him nor regulated by
the Board, nor shall it descend to the vice president.
Secretary
The secretary shall keep the resolutions, forms of written consent,
minutes of the meetings of the Board of Directors and of the shareholders, and
other official records of the corporation in appropriate books.
He shall give and serve all notices of the corporation.
He shall be custodian of the records and of the seal, and affix the
latter when required.
He shall keep the stock and transfer books in the manner prescribed by
law, so as to show at all times the amount of capital stock, the manner and the
time the same was paid in, the names of the owners thereof, alphabetically
arranged, their respective places of residence, their post office addresses, the
number of shares owned by each, the time at which each person became such owner,
155 9
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and the amount paid thereon; and keep such stock and transfer books open daily
during business hours at the office of the corporation, subject to the
inspection of any shareholder of the corporation, and permit such shareholder to
make extracts from said books to the extent and as prescribed by law.
He shall sign all certificates of stock.
He shall present to the Board of Directors all communications addressed to
him officially by the president or any officer or shareholder of the
corporation.
He shall attend to all correspondence and perform all the duties incident
to the office of secretary.
Treasurer
The treasurer shall have the care and custody of and be responsible for
all the funds and securities of the corporation, and deposit all such funds in
the name of the corporation in such bank or banks, trust company or trust
companies, or safe deposit vaults as the Board of Directors may designate.
He shall sign, make, and endorse in the name of the corporation, all
checks, drafts, warrants and orders for the payment of money and pay out and
dispose of same and receipt therefore, under the direction of the president or
the Board of Directors.
He shall exhibit at all reasonable times his books and accounts to any
director or shareholder of the corporation upon application at the office of the
corporation during business hours.
He shall render a statement of the condition of the finances of the
corporation whenever requested by the Board of Directors.
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He shall keep at the office of the corporation correct books of account of
all its business and transactions and such other books of account as the Board
of Directors may require.
He shall do and perform all duties appertaining to the office of
treasurer.
Other Officers
Other officers appointed or elected by the Board of Directors pursuant to
Section 1 of this Article shall have such duties and powers as are specified by
the Board.
Section 4. Bond. The treasurer shall, if required by the Board of
Directors, give to the corporation such security for the faithful discharge of
his duties as the Board may direct.
Section 5. Vacancies, How Filled. All vacancies in any office shall be
filled by the Board of Directors without undue delay in the manner set forth
above for selection of officers.
Section 6. Compensation of Officers. The officers shall receive such
salary or compensation as may be determined by the Board of Directors.
Section 7. Removal of Officers. The Board of Directors may remove any
officer by unanimous resolution or by a majority vote at a special meeting
called for that purpose, whenever, in the judgment of the Board of Directors,
the best interests of the corporation will be served thereby.
Section 8. Reimbursement of Disallowed Expenses. Any payments made to an
officer of the corporation, such as salary, commission, bonus, interest, rent,
or entertainment expense incurred by him, which are excessive in whole or in
part, shall be reimbursed by such officer to the Corporation to the full extent
of such excess.
ARTICLE IV
Section 1. Seal. The seal of the corporation shall be as follows:
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ARTICLE V
Section 1. Description of Share Certificates. The certificates
representing shares shall be numbered and registered in the order in which they
are issued. They shall be bound in a book and shall be issued in consecutive
order therefrom, and in the margin thereof shall be entered the name of the
person owning the shares therein represented, with the number of shares and the
date thereof. Such certificates shall exhibit the holder's name and the number
of shares. They shall be signed by the president or vice president, and
countersigned by the secretary or treasurer and sealed with the seal of the
corporation.
Section 2. Transfer of Shares. The shares of the corporation shall be
assigned and transferable on the books of the corporation only by the person in
whose name it appears on said books, or his legal representatives. In case of
transfer by attorney, the power of attorney, duly executed and acknowledged,
shall be deposited with the secretary. In all cases of transfer, the former
certificate must be surrendered and canceled before a new certificate may be
issued. No transfer shall be made upon the books of the corporation within ten
days next preceding any meeting of the shareholders.
ARTICLE VI
DIVIDENDS
The Board of Directors may by resolution or vote declare such dividends as
are permitted by law whenever, in their opinion, the condition of the
corporation's affairs will render it expedient for such dividends to be
declared.
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ARTICLE VII
BILLS, NOTES, ETC.
Section 1. How Made. All bills payable, notes, checks or other negotiable
instruments of the corporation shall be made in the name of the corporation, and
shall be signed by such officer or officers as the Board of Directors shall from
time to time direct. No officer or agent of the corporation, either singly or
jointly with others, shall have the power to make any bill payable, note, check,
draft or warrant or other negotiable instrument, or endorse the same in the name
of the corporation, or contract or cause to be contracted any debt or liability
in the name or behalf of the corporation, except as herein expressly prescribed
and provided.
ARTICLE VIII
AMENDMENTS
Section 1. How Amended. These by-laws may be altered, amended, or repealed
by unanimous resolution of the shareholders or Board of Directors, or by an
affirmative vote of a majority of the shareholders or directors at a special
meeting called for that purpose, provided that the notice of the meeting shall
state the alterations, amendments or changes which are proposed to be made. Only
such changes as have been specified in the notice shall be made. If, however,
all the shareholders or members of the Board shall be present at any meeting,
these by-laws may be amended by a unanimous vote, without any previous notice.
Approved by:
Alan Rabin
Director
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CARDIAC CONTROL SYSTEMS, INC.,
a Delaware corporation, as shareholder
By: Alan Rabin
Its: President
POTTER FINANCIAL, INC., a Florida
corporation, as shareholder
By: Barry Potter
Its: President
ROSS, FORSTER, SCILLIA & BROOKS,
INC., a Florida corporation, as shareholder
By: Michael Scillia
Its: CEO
160 2
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3.2A CFO Stmt
Goldenaccess.com, Inc.
1440 John F. Kennedy Cswy. #301
North Bay Village, Fl.33141
- --------------------------------------------------------------------------------
CERTIFIED STATEMENT OF CFO
I, Clifford Y. Pierce, President and CFO of GOLDENACCESS.COM, INC. am, and since
my employment on June 13, 1997, have been an officer of GOLDENACCESS.COM, INC. I
have participated in all corporate activity since that time and am competent to
execute this certification of corporate matters.
I am aware that no Bylaws or other governing documents have been adopted by the
corporation, its directors or shareholders other than the Articles of
Incorporation filed 1997, amended in August of 1999, and as further amended, and
that there have been no amendments or changes to those Articles except for the
following:
1. -to change the par value of the common stock to $.001 per share.
2. -to increase the authorized shares to 10,000,000 shares.
I am also aware that no event has occurred which would affect the authority or
powers granted therein.
I am also aware that the current Annual List of Officers as filed with the
Florida Secretary of State is complete and accurate.
I HEREBY CERTIFY UNDER PENALTY OF PERJURY UNDER THE LAWS OF THIS STATE THAT THE
FOREGOING IS TRUE AND ACCURATE TO THE BEST OF MY KNOWLEDGE.
- ---------------------- -----------------
Clifford Pierce Date
STOCK LEDGER STATEMENT
This statement made by GOLDENACCESS.COM, INC., maintained and kept on file at
its registered office in Florida in compliance with Section of the Florida
Revised Statutes.
The name of the custodian of our stock ledger or duplicate stock ledger is:
161
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CONSENT OF DIRECTORS IN LIEU OF MEETING
RESOLUTIONS OF DIRECTORS
CATHTECH GROUP, INC.
AUGUST 26, 1999
The undersigned, being all directors of CATHTECH GROUP, Inc. ("the
Corporation) hereby consent to the taking of the following action in lieu of
meeting and hereby waive any notice required to be given in connection
therewith:
RESOLVED by the Board of Directors of the Corporation that
1. Approval of Plan and Agreement of Merger.
(a) The plan and agreement of merger between the Corporation and
GOLDENACCESS.COM, INC. a Florida corporation, attached as an exhibit in this
resolution is hereby approved as to form and substance.
(b) The president and/or vice president of the Corporation are hereby
authorized and directed to execute the plan and agreement of merger, articles of
merger, and any related documents and to take all such actions as may be
required to complete the transactions contemplated by the plan and agreement of
merger.
2. Public Offering of Securities.
(a) Immediately following the filing of the plan and agreement of merger
described above with all jurisdictions where such filing is required to complete
the merger contemplated hereby, the president and/or vice-president of the
Corporation are hereby directed and authorized to cause the common stock of the
Corporation owned by Cardiac Control Systems, Inc., shareholders and their
designees and assigns, Potter Financial Inc., its shareholders and their
designees and assigns, to be registered with the Securities and Exchange
Commission and appropriate state securities agencies so as to be qualified for
public market status and for distribution, when registered, to the shareholders
of Cardiac Control Systems, Inc., as a stock dividend to its shareholders as
selected by Cardiac Control Systems, Inc.;
(b) The president and/or vice-president of the Corporation are hereby
authorized and directed to effect the public registration and issuance of shares
of the Corporation's common stock (including the common stock owned by Cardiac
Control Systems, Inc., shareholders and their designees and assigns, and Potter
Financial Inc., its shareholders and their designees and assigns,), preferred
stock and/or warrants and to retain, in their discretion, such underwriters or
selected dealers to affect a public distribution of such common stock, preferred
and/or warrants, to take all actions necessary to negotiate and enter into
distribution agreements with such underwriters or selected dealers and to pay
appropriate compensation, including by the issuance of securities or rights to
securities in the Corporation, to such underwriters or selected dealers;
162 13
<PAGE>
(c) The president and/or vice-president of the Corporation are hereby
authorized and directed to take any and all actions necessary to file with the
Securities and Exchange Commission and appropriate state agencies a registration
statement covering the securities of the Corporation and to employ such
professionals or others as may be appropriate to prepare and file such
registration statement;
(d) The president and/or vice-president of the Corporation are hereby
authorized and directed to execute in the name and on behalf of the Corporation,
and to procure all other necessary signatures, to such registration statement
and to any and all amendments or supplements thereto;
(e) The registration statement and any and all amendments and supplements
thereto may be signed by any one of the president or vice-president as the
attorney-in-fact for the Corporation, with full power of substitution and
resubstitution; and the appointment of each of such persons as such
attorney-in-fact hereby is authorized and approved; and such attorneys-in-fact,
and each of them, shall have full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection with such
registration statement and any and all amendments and supplements thereto, as
fully to all intents and purposes as the officer for whom he is acting as
attorney-in-fact, might or could do in person;
(f) The president and/or vice-president of the Corporation and its counsel
are hereby authorized to appear on behalf of the Corporation before the
Securities and Exchange Commission and any state agency in connection with any
matter relating to the registration statement and to any amendment or supplement
thereto;
(g) The form of common stock, preferred stock and/or warrant certificates
as be selected by the president or vice-president are authorized and approved,
with such additions thereto, deletions therefrom or changes therein, as shall be
approved by the president or vice-president;
(h) The president and/or vice-president are hereby authorized to determine
the states in which appropriate action shall be taken to qualify or resister all
or such part of the securities as such officers may deem advisable; such
officers hereby are authorized to perform on behalf of the Corporation any and
all such acts as they may deem necessary or advisable to comply with the
applicable laws of any such states, and in connection therewith to execute and
file all requisite papers and documents, including but not limited to,
applications, reports, surety bonds, irrevocable consents and appointments of
attorneys for service of process; and the execution by such officers of any such
paper or document or the doing by them of any act in connection with the
foregoing matters shall conclusively establish their authority therefor from the
Corporation of the papers and documents so executed and the action so taken;
(i) The Board of Directors hereby adopts the form of any resolution
required by any state securities law to be adopted in connection with an
application for qualification or registration of securities, or any consent to
service of process or other requisite paper or document required to be filed in
connection therewith, if (l) in the opinion of the president and/or vice
president of the Corporation the adoption of such resolution is necessary or
advisable, such consent to be conclusively evidenced by signature of the
163 14
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president and/or vice president (2) the secretary or assistant secretary
evidences such adoption by inserting in the minutes a copy of such resolution,
which thereupon will be deemed to be adopted by this Board of Directors with the
same force and effect as if specifically adopted at this meeting;
(j) The president and/or vice president may at any time hereafter appoint
any qualified transfer agent for the securities to act in accordance with its
general practice and its customary regulations, and until such time the
secretary or assistant secretary shall act as transfer agent;
(k) The president and/or vice-president of the Corporation are hereby
authorized and empowered to take final action on all such matters as they may
deem necessary or advisable to carry out the registration and issuance of the
securities; and to take such further action as such officers may deem necessary
or desirable to effect the intent of the foregoing resolutions.
Effective as of August 26, 1999.
-----------------------------
Alan Rabin, President
CathTech Group, Inc.
164
<PAGE>
RESOLUTION OF SHAREHOLHERS
CONSENT OF SHAREHOLDERS IN LIEU OF MEETING
CATHTECH GROUP, Inc.
AUGUST 26, 1999
The undersigned, being the sole shareholders of CATHTECH GROUP, Inc. ("the
Corporation") hereby consent to the taking of the following action in lieu of
meeting and hereby waives any notice required to be given in connection
therewith:
RESOLVED by the shareholders of the Corporation that the plan and
agreement of merger between the Corporation and GOLDENACCESS.COM, INC., a
Florida corporation, as approved by the Board of Directors of the Corporation,
is hereby approved as to form and substance.
Effective as of AUGUST 26, 1999.
CATHTECH GROUP, INC.
By______________________________
Alan Rabin, President
Potter Financial, Inc.
ATTEST:
By_______________________________
__________________________ Barry Potter, President
Secretary
Ross, Forster, Scillia, & Brooks, Inc.
By________________________________
Michael Scillia, Chairman
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SECRETARY'S CERTIFICATE
CATHTECH GROUP, INC.
AUGUST 26, 1999
I, , Secretary of CATHTECH GROUP, INC., a corporation organized and
existing under the laws of the State of Florida, hereby certifies that the Plan
and Agreement of Merger to which this certificate is attached was duly adopted
pursuant to Sections ***251 and 252 of the Florida General Corporation Law by
the affirmative vote of the stockholders holding two million eight hundred
seventy two thousand five hundred shares (2,872,500) shares of the capital stock
of the corporation, being 100 percent of the shares then issued and outstanding
having voting power.
WITNESS my hand on this 26TH day of August, 1999.
CATHTECH GROUP, INC.
-----------------------------
Secretary
166 15
<PAGE>
NUMBER SHARES
GA
GOLDENACCESS.COM, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF FLORIDA
CUSIP 38134P 10 3
C O M M O N S T O C K
This Certifies That:
is owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF $.001 PAR
VALUE EACH OF
GOLDENACCESS.COM, INC.
transferable on the books of the Corporation in person or by attorney upon the
surrender of this certificate duly endorsed or assigned. This certificate and
the shares represented hereby are subject to the laws of the State of Florida,
and to the Article of Incorporation and Bylaws of the Corporation, as now or
hereafter amended. This certificate is not valid until countersigned by the
Transfer Agent.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
DATED: COUNTERSIGNED:
SUNTRUST
BANK, ATLANTA
TRANSFER AGENT
BY:
AUTHORIZED SIGNATURE
/SS/ /SS/
SEAL
COUNSEL PRESIDENT
EXHIBIT 4.1
OPTION AGREEMENTS
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WRITTEN CONSENT
OF SOLE DIRECTOR
OF GOLDENACCESS.COM, INC.
IN LIEU OF SPECIAL MEETING
The undersigned, being the sole director of GOLDENACCESS.COM, INC., a
Florida corporation (the "Corporation"), hereby consents, in lieu of a special
meeting and pursuant to Section 607.0821 of the Florida Business Corporation
Act, to the adoption of the following resolutions, and directs the Secretary of
the Corporation to file this Consent in the minute book of the Corporation:
WHEREAS, Clifford Y. Pierce ("Pierce") is the sole director of the
Corporation;
WHEREAS the Corporation desires to issue to Pierce an option to acquire
120,000 shares of common stock of the Corporation at a strike price of
twenty-five cents ($.25) per share exercisable for five years from the date of
the option agreement, but not first exercisable until the completion of 6
consecutive months after the effective date of the first registration statement
of the Company.
RESOLVED, that the officers of the Corporation are hereby authorized and
directed to execute that certain Option Agreement in the form attached hereto as
EXHIBIT A, and to do and perform any and all other acts, and execute any and all
other documents that, in their sole discretion, are necessary or appropriate in
connection therewith.
WHEREAS, Paul Chalihoo ("Chalihoo") is a key person in the Corporation;
WHEREAS, the Corporation desires to issue to Chalihoo, as key personnel,
an option to acquire 150,000 shares of common stock of the Corporation at a
strike price of twenty-five cents ($.25) per share, exercisable for five years
after the date of the option agreement, but with the restriction that an option
to acquire only 30,000 shares may be exercised after the completion of one year
following the effective date of the first registration statement of the
Corporation, and that an option to acquire the other 120,000 shares may be
exercised after the completion of two years following the effective date of the
first registration statement of the Corporation, and with the further
restriction that Chalihoo be employed by the Corporation at the time of any
exercise of options.
RESOLVED, that the officers of the Corporation are hereby authorized and
directed to execute that certain Option Agreement in the form attached hereto as
EXHIBIT B, and to do and perform any and all other acts, and execute any and all
other documents that, in their sole discretion, are necessary or appropriate in
connection therewith.
WHEREAS, Nigel Gray ("Gray") is a key person in the Corporation;
168
<PAGE>
WHEREAS, the Corporation desires to issue to Gray, as key personnel, an
option to acquire 50,000 shares of common stock of the Corporation at a strike
price of twenty-five cents ($.25) per share, exercisable for five years after
the date of the option agreement, but with the restriction that an option to
acquire only 10,000 shares may be exercised only after the completion of one
year following the effective date of the first registration statement of the
Corporation, and that an option to acquire the other 40,000 shares may be
exercised only after the completion of two years following the effective date of
the first registration statement of the Corporation, and with the further
restriction that Gray be employed by the Corporation at the time of any exercise
of options.
RESOLVED, that the officers of the Corporation are hereby authorized and
directed to execute that certain Option Agreement in the form attached hereto as
EXHIBIT C, and to do and perform any and all other acts, and execute any and all
other documents that, in their sole discretion, are necessary or appropriate in
connection therewith.
FURTHER RESOLVED, that the Corporation is hereby authorized to issue to
"executive management personnel" of the Corporation options to acquire an
additional 680,000 shares of common stock of the Corporation at a strike price
of twenty-five cents ($.25) per share, exercisable for five years from the date
of the option agreement, but not first exercisable until the completion of 6
consecutive months after the effective date of the first registration statement
of the Corporation, and that the officers of the Corporation are hereby
authorized and directed to execute such agreements, and to do and perform any
and all other acts that, in their sole discretion, are necessary or appropriate
in connection therewith.
FURTHER RESOLVED, that the Corporation is hereby authorized to issue to
"key personnel" of the Corporation options to acquire an additional 220,000
shares of common stock of the Corporation at a strike price of twenty-five cents
($.25) per share, exercisable for five years from the date of the option
agreement, provided that 20 percent of any option grant may be exercised after
one year has elapsed following the effective date of the first registration
statement of the Corporation and that 80 percent thereof may be exercised after
two years have elapsed following such effective date, and further provided that
the employee to whom the option is granted is employed by the Corporation at the
time of exercise. The officers of the Corporation are hereby authorized and
directed to execute such agreements, and to do and perform any and all other
acts that, in their sole discretion, are necessary or appropriate in connection
therewith.
Dated as of:
Clifford Y. Pierce, as sole
director of the Corporation
[bks] W:\52206\MINUTE41.BKS{10/22/99-3:46}
169
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EXHIBIT A
OPTION AGREEMENT
DATED
____________,1999
PARTIES:
Goldenaccess.com, Inc., a Florida corporation (the "Corporation"), with an
address at
.
Clifford Y. Pierce ("Pierce"), with an address at
- ------------------------------------------.
RECITALS:
WHEREAS, Pierce is the sole director of the Corporation.
WHEREAS, the Corporation desires to grant to Pierce an option to acquire
120,000 shares of the common stock of the Corporation at the price and upon the
terms hereinafter set forth.
NOW THEREFORE, in consideration of the receipt of $1.00 and other good and
valuable consideration, the sufficiency and receipt of which is hereby
acknowledged, the parties hereby agree upon the following terms.
TERMS:
Option.
Pierce is hereby granted the right to acquire ONE HUNDRED AND TWENTY
THOUSAND (120,000) shares of the common stock of the Corporation, during the
period commencing on the date of this Option Agreement and ending on the fifth
anniversary of the date of this Option Agreement (the "Option Period") at a
price of twenty-five cents ($.25) per share (the "Option").
2. Restriction on Time of Exercise. The Option may not be exercised, in
whole or in part, until the date that is six (6) months following the effective
date of the first Registration Statement of the Corporation.
3. Minimum Exercise.
Subject to the terms of Section 2, above, the Option may be exercised
in whole or in part, from time to time and at any time and at multiple times
during the Option Period, but for an amount of no less than 5,000 shares at any
one time.
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4. Payment of the Purchase Price of Shares. Payment for the purchase of
shares pursuant to the Option shall be made by cashier's check, attorney's trust
account check, or wire transfer, at a closing to be held no later that 30 days
after delivery of notice of exercise of rights under the Option.
5. Adjustment of Option Shares and Option Price.
The number of shares subject to the Option shall be adjusted for any
stock dividend, subdivision, split-up or combination or exchange of common stock
of the Corporation, and the purchase price of each share shall be adjusted
accordingly.
6. Transferability.
This Agreement and all rights hereunder shall not be transferable by
Pierce at any time without the prior written consent of the Corporation. This
Agreement and all the rights hereunder shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and
transferees.
7. Governing Law.
This Agreement is executed and delivered in, and shall be governed by
and construed in accordance with, the laws of the State of Florida.
8. Amendment.
This Agreement, or any provision hereof, may not be amended, changed or
modified without the written consent of each of the parties hereto.
9. Notices.
Any notice to be given hereunder shall be in writing, and shall be
delivered personally, or by a service obtaining a receipt for delivery, or by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the party at the address shown above or such changed address as to
which notice has previously been given hereunder, and deemed given when so
delivered or 3 days after such mailing.
171 18
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
- -------------------------------------------------------------------------------
WITNESSES: GOLDENACCESS.COM, INC., a Florida
corporation
By:
Clifford Y. Pierce, President
Print Name:
Print Name:
As to the Corporation
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
[signature page to option agreement between goldenaccess.com. inc. and Clifford
Y. Pierce]
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<PAGE>
EXHIBIT B
OPTION AGREEMENT
DATED
____________, 1999
PARTIES:
Goldenaccess.com, Inc., a Florida corporation (the "Corporation"), with an
address at
.
Paul Chalihoo ("Chalihoo"), with an address at
- ------------------------------------------.
RECITALS:
WHEREAS, Chalihoo is a key employee of the Corporation.
WHEREAS, the Corporation desires to grant to Chalihoo an option to acquire
150,000 shares of the common stock of the Corporation at the price and upon the
terms hereinafter set forth.
NOW THEREFORE, in consideration of the receipt of $1.00, Chalihoo's
continued employment with the Corporation and other good and valuable
consideration, the sufficiency and/or receipt of which is hereby acknowledged,
the parties hereby agree upon the following terms.
TERMS:
Option.
Chalihoo is hereby granted the right to acquire ONE HUNDRED AND FIFTY
THOUSAND (150,000) shares of the common stock of the Corporation, during the
period commencing on the date of this Option Agreement and ending on the fifth
anniversary of the date of this Agreement (the "Option Period") at a price of
twenty-five cents ($.25) per share (the "Option").
2. Restriction on Exercise.
The exercise of the Option described in Section 1 is subject to the
following restrictions:
(a) No Option may be exercised under this Option Agreement, either in
whole or in part, until the first anniversary of the effective date of the first
Registration Statement of the Corporation.
(b) An Option to acquire up to 30,000 shares under this Option
Agreement may be exercised beginning on the first anniversary of the effective
date of the first Registration Statement of the Corporation.
173 19
<PAGE>
(c) An Option to acquire all remaining shares under this Option
Agreement may be exercised beginning on the second anniversary of the effective
date of the first Registration Statement of the Corporation.
3. Minimum Exercise.
Subject to the terms of Section 2, above, the Option may be exercised
in whole or in part, from time to time and at any time and at multiple times
during the Option Period, but for an amount of no less than 5,000 shares at any
one time.
4. Payment of the Purchase Price of Shares.
Payment for the purchase of shares pursuant to the Option shall be made
by cashier's check, attorney's trust account check, or wire transfer, at a
closing to be held no later that 30 days after delivery of notice of exercise of
rights under the Option.
5. Adjustment of Option Shares and Option Price.
The number of shares subject to the Option shall be adjusted for any
stock dividend, subdivision, split-up or combination or exchange of common stock
of the Corporation, and the purchase price of each share shall be adjusted
accordingly.
6. Transferability.
This Agreement and all rights hereunder shall not be transferable by
Chalihoo at any time without the prior written consent of the Corporation. This
Agreement and all the rights hereunder shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and
transferees.
7. Forfeiture.
If Chalihoo's employment with the Corporation should terminate at any
time during the Option Period, voluntarily or involuntarily, for any reason
whatsoever, including but not limited to death or disability, termination with
or without cause, or Chalihoo's resignation, Chalihoo shall forfeit the right to
exercise any portion of the Option remaining at the time of such termination.
8. Governing Law.
This Agreement is executed and delivered in, and shall be governed by
and construed in accordance with, the laws of the State of Florida.
9. Amendment.
This Agreement, or any provision hereof, may not be amended, changed or
modified without the written consent of each of the parties hereto.
10. Notices.
Any notice to be given hereunder shall be in writing, and shall be
delivered personally, or by a service obtaining a receipt for delivery, or by
registered or certified mail, postage prepaid, return receipt requested,
174 20
<PAGE>
addressed to the party at the address shown above or such changed address as to
which notice has previously been given hereunder, and deemed given when so
delivered or 3 days after such mailing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
- -------------------------------------------------------------------------------
WITNESSES: GOLDENACCESS.COM, INC., a Florida
corporation
By:
Clifford Y. Pierce, President
Print Name:
Print Name:
As to the Corporation
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Paul Chalihoo
Print Name:
Print Name:
As to Paul Chalihoo
- -------------------------------------------------------------------------------
[signature page to option agreement between goldenaccess.com. inc. and Paul
Chalihoo]
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175
<PAGE>
EXHIBIT C
OPTION AGREEMENT
DATED
____________, 1999
PARTIES:
Goldenaccess.com, Inc., a Florida corporation (the "Corporation"), with an
address at
.
Nigel Gray ("Gray"), with an address at
- ------------------------------------------.
RECITALS:
WHEREAS, Gray is a key employee of the Corporation.
WHEREAS, the Corporation desires to grant to Gray an option to acquire
50,000 shares of the common stock of the Corporation at the price and upon the
terms hereinafter set forth.
NOW THEREFORE, in consideration of the receipt of $1.00, Gray's continued
employment with the Corporation and other good and valuable consideration, the
sufficiency and/or receipt of which is hereby acknowledged, the parties hereby
agree upon the following terms.
TERMS:
Option.
Gray is hereby granted the right to acquire FIFTY THOUSAND (50,000)
shares of the common stock of the Corporation, during the period commencing on
the date of this Option Agreement and ending on the fifth anniversary of the
date of this Agreement (the "Option Period") at a price of twenty-five cents
($.25) per share (the "Option").
2. Restriction on Exercise.
The exercise of the Option described in Section 1 is subject to the
following restrictions:
(a) No Option may be exercised under this Option Agreement, either in
whole or in part, until the first anniversary of the effective date of the first
Registration Statement of the Corporation.
(b) An Option to acquire up to 10,000 shares under this Option
Agreement may be exercised beginning on the first anniversary of the effective
date of the first Registration Statement of the Corporation.
176 21
<PAGE>
(c) An Option to acquire all remaining shares under this Option
Agreement may be exercised beginning on the second anniversary of the effective
date of the first Registration Statement of the Corporation.
3. Minimum Exercise.
Subject to the terms of Section 2, above, the Option may be exercised
in whole or in part, from time to time and at any time and at multiple times
during the Option Period, but for an amount of no less than 5,000 shares at any
one time.
4. Payment of the Purchase Price of Shares.
Payment for the purchase of shares pursuant to the Option shall be made
by cashier's check, attorney's trust account check, or wire transfer, at a
closing to be held no later that 30 days after delivery of notice of exercise of
rights under the Option.
5. Adjustment of Option Shares and Option Price.
The number of shares subject to the Option shall be adjusted for any
stock dividend, subdivision, split-up or combination or exchange of common stock
of the Corporation, and the purchase price of each share shall be adjusted
accordingly.
6. Transferability.
This Agreement and all rights hereunder shall not be transferable by
Gray at any time without the prior written consent of the Corporation. This
Agreement and all the rights hereunder shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and
transferees.
7. Forfeiture.
If Gray's employment with the Corporation should terminate at any time
during the Option Period, voluntarily or involuntarily, for any reason
whatsoever, including but not limited to death or disability, termination with
or without cause, or Gray's resignation, Gray shall forfeit the right to
exercise any portion of the Option remaining at the time of such termination.
8. Governing Law.
This Agreement is executed and delivered in, and shall be governed by
and construed in accordance with, the laws of the State of Florida.
9. Amendment.
This Agreement, or any provision hereof, may not be amended, changed or
modified without the written consent of each of the parties hereto.
10. Notices.
Any notice to be given hereunder shall be in writing, and shall be
delivered personally, or by a service obtaining a receipt for delivery, or by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the party at the address shown above or such changed address as to
which notice has previously been given hereunder, and deemed given when so
delivered or 3 days after such mailing.
177
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
- -------------------------------------------------------------------------------
WITNESSES: GOLDENACCESS.COM, INC., a Florida
corporation
By:
Clifford Y. Pierce, President
Print Name:
Print Name:
As to the Corporation
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Nigel Gray
Print Name:
Print Name:
As to Nigel Gray
- -------------------------------------------------------------------------------
[signature page to option agreement between goldenaccess.com. inc. and Nigel
Gray]
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178 22
<PAGE>
EXHIBIT 5
LEGAL OPINION ON LEGALITY
<PAGE>
LAW OFFICES OF
GARY M. APPELBLATT
3610 American River Drive, Suite 112
Sacramento, CA 95864
Gary M. Appelblatt* Telephone (916) 486-4200
Mary K. Driscoll Fascimile (916) 485-1735
* Admitted in California and Florida
October 12, 1999
GOLDENACCESS.COM, INC.
1865 Brickell Avenue, A-1609
Miami, FL 33129
Attention: Board of Directors
Dear Persons,
This letter is in connection with the registration up to five hundred
thousand shares of common stock, par value $.001 per share of GOLDENACCESS.COM,
INC. a Florida corporation (the "Company"), under its Form SB-2 Registration
Statement under the Securities Act of 1933 (the "Registration Statement").
Pursuant to such Registration Statement the Company and Selling Shareholders
proposed register five hundred thousand shares of common stock.
I have examined such corporate records, certificates and other
documents as I have considered necessary and proper for the purpose of this
opinion. In such examination, I have assumed the genuiness of all signatures,
the authenticity of all documents submitted to me as originals, the conformity
to the original documents submitted to me as copies and the authenticity of the
originals of such latter documents. As to any facts material to my opinion, I
have, when relevant facts were not independently established, relied upon the
aforesaid record, certificates and documents.
Based on the foregoing, It is my opinion that when (i) the Registration
Statement shall have become effective under the Securities Act of 1933, as
amended, (ii) the Certificates for the Company's Shares of the Common Stock have
been duly executed, countersigned, registered and delivered and the
consideration therefor paid to the Company, then the Stock shall be validly
issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the
statement made in reference to me under the caption "Legal Matters" and this
opinion in the Prospectus constituting a part of the Registration Statement.
Sincerely,
Gary M. Appelblatt
GMA/smb
181
<PAGE>
EXHIBIT 10.1
FORM of IP GATEWAY PURCHASE AGREEMENT
182
<PAGE>
10.1 p1
GOLDEN ACCESS GROUP
IP Telephony Gateway Purchase Agreement
This Purchase Agreement (hereinafter called the "Agreement") entered as of July
13, 1999 between (hereinafter called "Customer") and Golden Access Group of
Miami, Florida, USA (hereinafter called "Golden Access") establishes the terms
and conditions under which Golden Access will supply the IP Telephony Gateway
(hereinafter called ("Product") to the Customer.
Golden Access agrees to sell the Product as follows:
1. Golden Access IP Telephony Gateway configuration of:
o 8-Port System - $US 16,000.00
2. Payment Terms are 25% downpayment upon signing of this
Agreement and 75% within thirty (30) days of date of invoice
by certified cheque, bank transfer or an irrevocable Letter of
Credit from a financial institution acceptable to Golden
Access.
3. Golden Access grants the Customer a personal, non-exclusive,
non-transferable license to use the IP Telephony Gateway
software solely for the operation of the Customer's IP
Telephone services to its subscribers. Under the terms of this
license, the Customer shall not:
o Modify of copy the software
o Reverse compile or reverse engineer all or any portion of the
software
o Distribute, disclose or transfer the software to any third
party
4. Golden Access will provide remote product support on a
Mon.-Fri.(9am EST-6pm EST) basis and access to new software
releases for a period of 1 year at no additional charge to the
Customer. The Customer will provide Golden Access with all the
necessary information and cooperation required for its
technical support personnel to remotely access the system for
maintenance and troubleshooting purposes. These procedures are
outlined in Appendix B, attached hereto. It the Customer
should request on-site technical support, this will be
provided at the prices and terms sited in Appendix B.
5. Golden Access can offer annual extensions of the technical
support/software update package to the Customer and these are
available at the rates outlined in Appendix B.
6. Golden Access will provide one (1) set of all the necessary technical
documentation, including User Manuals, etc. associated with the
Product.
7. Golden Access will make available to the Customer, training in
the installation and operation of the Product. This training
is available at a rate of $500 per person per day in
accordance with a schedule and location to be agreed upon
between both parties. All travel and related expenses shall be
borne by the Customer. In the event that the Customer elects
to have Golden Access perform the initial installation as per
paragraph 7 below, the training fee will be waived, however,
the Customer will be responsible or the additional living
expenses associated with said training.
8. Golden Access can provide On-site Installation at a rate of $750 per
day plus travel and related expenses.
183
<PAGE>
10.1 p2
GENERAL TERMS AND CONDITIONS
Clause 1 - Copyright and Confidentiality
1.1 Each Party agrees to maintain in strict confidence all plans,
designs, drawings, trade secrets and other proprietary information
of the other Party which is disclosed pursuant to this Agreement.
1.1 Golden Access retains title to all portions, excluding third party
licenses, of the software associated with the Product. A Non-Disclosure
Agreement, as per Appendix A, shall be signed by both Parties.
Clause 2 - Prices/Payment Terms
2.1 All prices are FOB Miami, FLA., USA
2.2 Golden Access reserves the right to charge interest on all delinquent
payments at an annualized rate of 2 percentage points above the
commercial rate as listed by its banking institution.
2.3 The Golden Access prices do not include the cost to Golden Access or
its employees of any taxes, duties, levies or other like charges
payable by them or any of them under the laws or regulations in force
in countries other than the United States and to the extent that such
taxes, duties, levies and other like charges are required to be paid,
these shall be borne solely by the Customer.
Clause 3 - Warranty
3.1 Golden Access warrants that the Product shall be free of defects and
perform in accordance with Golden Access's specifications for a period
of ninety (90) days from delivery to the Customer. Golden Access's sole
obligation under this warranty shall be to provide remote Technical
Support as outlined in Appendix A in an effort to remedy the defect.
The warranties in this article will be voided if the Product is
modified in any way by the Customer and/or its agents without written
authorization from Golden Access. GOLDEN ACCESS DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OF IMPLIED, IMCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Clause 4 - Liability
4.1 Under no circumstances shall Golden Access, its employees or
cont5ractors be liable for any direct, Indirect, Incidental, special,
punitive or consequential damages that may result in any way from
negligence or acts of the Customer or its agents, the failure or
malfunction of non-Golden Access equipment, the Customer's (or
Customer's authorized users) use of, or inability to use the Product or
any part thereof, resulting from errors, omissions, interruptions,
delays in operation or transmission or any failure of performance of
the Internet and/or PSTN networks.
4.2 Neither Golden Access or its third party licensors will be liable for
indirect, incidental, special or consequential damages including but
not limited to lost data or lost profits, however arising, even if it
has been advised of the possibility of such damages. The liability of
Golden Access and its third party licensors for damages under this
agreement shall in no event exceed the amount paid by the Customer to
Golden Access under this Agreement for the Product as to which the
claim arose.
Clause 5 - Force Majeure
5.1 Golden Access shall not be liable for any delay or failure in performance of
any part of this Agreement to the extent such delay or failure is caused by an
even of Force Majeure, including but not limited to, fire, flood, explosion,
accident, war, strike, embargo, government requirement, civil or military
authority, Act of God, inability to secure materials, labour or transportation,
acts of omissions of common carrier or warehouseman, or any other causes beyond
their reasonable control. Any such delay or failure shall suspend the Agreement
until the Force Majeure condition ceases and the Term shall be extended by the
length of the suspension.
184
<PAGE>
10.1 p3
Clause 6 - Suspension/Termination
6.1 Either Party may, by written notice to the other Party, suspend or
terminate its obligation under the Agreement
a) in the event that either Party shall have failed to pay or authorize
payment of any sum to the other Party when due under the Agreement; or
b) in the event that either Party is in breach of the Agreement
and shall fail after receiving not less than thirty (30) days
written notice to take effective steps to remedy such breach;
or
c) in the event that either Party goes into liquidation except
for the purposes of corporate re-organization or otherwise
ceases trading.
Any suspension or termination as a result of the foregoing, does not
absolve the Customer from its obligations to pay any outstanding
invoices due under the Agreement.
Clause 7 - Effective Date of Agreement
7.1 This Agreement shall become effective on that date which it is duly
initialed, signed and dated by authorized representatives of Golden
Access and the Customer. Neither Party may assign, transfer the whole
or any par of this Agreement to any one without written consent by the
other Party.
Clause 8 - Arbitration and Jurisdiction
8.1 Al differences and disputes between the Parties arising from this Agreement
which cannot be
settles by mutual agreement shall be finally settled under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce
(ICC). The arbitration proceeding shall take place at Miami, Florida
and the language of the arbitration proceeding, the award and all
documents filed or submitted in connection therewith shall be in
English.
8.2 This Agreement shall be governed, construed and interpreted in
accordance with the laws of the State of Florida, USA.
8.3 All correspondence relevant to the performance of this Agreement shall
be in English and when given to Golden Access, should be addressed to:
Golden Access Group
1865 Brickell Avenue A-1609
Miami, FL 33129
And when given to the Customer, should be addressed to:
This Agreement supersedes all other prior discussions and negotiations between
the Customer and Golden Access and sets forth the understanding between both
Parties as to the intent of this Agreement. It may be modified in writing only,
provided it is signed by a duly authorized representative of both Parties.
IN WITNESS WHEREOG, the Parties have executed this Agreement on the date herein;
Golden Access Group Customer
185
<PAGE>
10-1-4
APPENDIX A
Confidentiality and Non-Disclosure Agreement
This agreement is entered into as of _____________ between ____________and
Golden Access Group, WHEREAS, each entity executing this agreement (hereinafter
"Party")agrees that for the purpose of evaluating a potential business
relationship, the parties will disclose and receive information under the terms
and conditions specified below:
NOW THEREFORE, the parties hereby agree as follows:
1. All communications or data, in any form, which are disclosed by one
Party or any of its subsidiary, patent or associate companies
("Disclosing Party") to the either Party or any of its subsidiary,
parent or associate companies ("Receiving Party") and which are to be
protected hereunder against unrestricted disclosure or competitive use
by the Receiving Party shall be deemed to be "Confidential
Information".
2. All Confidential Information, if in writing or other tangible form,
shall be labeled as "Confidential" at the time of its delivery, and, if
oral, shall be identified as "confidential" prior to disclosure
3. Confidential information of the Disclosing Party shall be treated as
confidential and safeguarded hereunder by the Receiving Party for a
period of two (2) years form the date of disclosure unless earlier
waived in writing by the Disclosing Party.
4. The Receiving Party agrees that (a) any Confidential information
disclosed hereunder shall be used by the Receiving Party solely for the
purpose set forth above and (b) except as may be required by applicable
law or legal process, the Receiving party will not disclose of
disseminate such Confidential information to anyone, except to those
employees (including employees of its parent, subsidiaries and
affiliates) and professional advisers who have the need to know such
Confidential information for the purpose for which it is disclosed,
unless and until such time as such Confidential information:
a) is available generally to the public, other than as a result of a
breach of this Agreement, or,
b) is disclosed lawfully to the Receiving Party by a third party who is
free lawfully to disclose the same, or,
c) is developed independently by the Receiving Party, or,
d) The applicable period of confidentiality pursuant to paragraph 3 has
ended.
e) Is already in the possession of the Receiving Party and is subject to
an existing agreement of confidence between the parties.
6. The Receiving Party shall use reasonable safeguards against the
unauthorized disclosure of confidential and proprietary information and
shall advise all of its employees and professional advisors having
access to Confidential information of the obligations hereunder.
7. Upon expiration of the period of confidentiality, or sooner upon
written request of the Disclosing Party, all Confidential Information
in the possession of the Receiving Party shall be returned to the
Disclosing Party or destroyed, at the option and instruction of the
Disclosing Party.
8. It is understood that this Agreement is not intended to, and does not,
obligate either Party to enter into any further agreements or to
proceed with any relationship or other transaction.
9. This agreement shall be governed by and construed in accordance with the laws
of the State of Florida, USA.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the date herein.
Company: _______________________________ Golden Access Group
Signature: _______________________________ _______________________
Name: __________________________________ _____________________
186
<PAGE>
10-1-5
APPENDIX B
Golden Access Purchase Agreement
Technical Support Procedures
In the event that the Customer requires remote Technical Support, Golden Access
will offer this service on a Mon.-Fri. (9am EST - 6pm EST) basis. The procedure
is as follows;
1) The Customer may either contact Golden Access at [email protected]
or in the event of a critical problem, contact the Golden Access hotline
(+1-305-XXX-XXXX) and report the problem to the customer service
operator.
2) In the event of a non-critical request for Technical Support, Golden
Access will make its best effort to respond to the Customer within the
next available business day to provide further assistance.
3) In the event of a critical request (out of service) for Technical
Support, Golden Access will make its best effort to contact the customer
within 4 hours of the reporting time to commence their investigation into
the problem.
4) If the event described in paragraph 3 above is caused by non-Golden
Access equipment and/or software, it will be the responsibility of the
Customer to directly contact the suppliers for technical support.
5) In the event that a Customer requests on-site support by Golden Access
personnel, the charge will be $US 760 per day plus living expenses and
return business class airfare billed at cost.
6) After the first year, if the Customer requests an extension to the
Technical Support/Software update package, this will be charged at a rate
of 8% of the total purchase price of the Product in operation by the
Customer at the time of the request and payable in full at the beginning
of the extension period.
EXHIBIT 10.2
FORM OF IP GATEWAY COMMERCIAL SERVICE AGREEMENT
187
<PAGE>
10.2 p1
GOLDEN ACCESS GROUP
Commercial Service Agreement
This Commercial Service Agreement (hereinafter called the "Agreement") entered a
of July 13, 1999 between (hereinafter called "Customer") of (hereinafter called
"Territory") and Golden Access Group of Miami, Florida, USA (hereinafter called
"Golden Access") establishes the terms and conditions under which Golden Access
will provide international IP Telephony termination service (hereinafter called
"Service") to the Customer.
A. Nature of Services
Golden Access will provide non-exclusive termination service for
international telephone traffic originating from the Customers'IP
Telephony Gateway purchased from Golden Access under the IP Telephony
Gateway Purchase Agreement. The destinations and rates offered are
outlined in Appendix B, attached hereto.
Customer will allow Golden Access to terminate traffic from its global
network destined for the Territory via their local IP Telephony Gateway
at rates as stated in Appendix C, attached hereto.
B. Customer Obligations
Customer will be responsible to supply all the equipment and connection
services required to interface the IP Telephony Gateway to the local
PSTN network and the Internet. All associated costs are borne solely by
the Customer, including recurring connection charges, throughout the
term of this Agreement. Customer is solely responsible for the all
administrative and technical support aspects of their subscribers,
including billing and collection.
C. Golden Access Obligations
Golden Access will provide remote technical support on a 24x7 basis at
no charge to the Customer. The Customer will provide Golden Access
wi8th all the necessary information and cooperation required for its
technical support personnel to remotely access the system for
maintenance and troubleshooting purposes. These procedures are outlined
in Appendix D, attached hereto.
If the Customer should request additional on-site technical support,
this will be provided at the prices and terms listed in said Appendix
D.
In the event that a Service Interruption occurs and a resolution has
not been provided by Golden Access with 24 hours of the problem being
reported, the Customer may, at its discretion, invoke Clause 4.3 of the
General Terms and Conditions herein. A Service Interruption will be
deemed to have occurred only if the entire service becomes unusable to
the Customer as a result of failure of Golden Access's Product used to
provide the Service and only where the interruption is not the result
of a) the negligence or acts of the Customer or its agents; b) the
failure or malfunction of non-Golden Access equipment or systems not
provided by Golden Access; c) circumstances or causes beyond the
control of Golden Access; or d) a service interruption caused by
scheduled service maintenance, alteration or implementation.
The foregoing states the Customer's sole remedy for service
interruption under the Agreement, and in no event shall Golden Access
be liable for any indirect, consequential or special loss or damage
suffered which, for the avoidance of doubt, shall include loss of
profits and contracts.
188
<PAGE>
10.2 p2
D. Billing
In consideration of the services rendered by Golden Access, Customers
shall pay termination fees as outlined in Appendix B which may be
adjusted from time to time at the discretion of Golden Access and the
new rate table shall be effective upon 5 days notice, unless interim
rate changes are necessary to improve Quality of Service.
Golden Access shall pay the Customer for traffic termination into the
Territory via their IP Telephony Gateway at the termination fees
outlined in Appendix C.
In order to secure payment for these services, the Customer agree to
deposit prior to the performance of any services an amount sufficient
to cover one times the estimated average weekly sales volume. In the
case where Golden Access intends to use the Customers' Internet
Telephony Gateway to terminate traffic into the Territory, the parties
agree to offset the Customers' deposit by the amount of the estimated
average weekly sales volume that Golden Access will use. This deposit
shall be either as Cash, Certified Cheque, Bank transfer and/or an
irrevocable Letter of Credit from a financial institution acceptable to
Golden Access. Said deposit shall be subject to offset by Golden Access
in the event payment of the outstanding account balance is no made
after 7 days from receipt of invoice. Golden Access reserves the right
to review the deposit from time to time and adjust the required amount
necessary based upon invoiced amounts for previous billing periods.
A weekly financial settlement will take place between Golden Access and
the Customer. This settlement will be based upon the CDR (Call Detail
Records) produces by the Service which indicate the necessary
accounting information required to calculate the amount due. Golden
Access will prepare the invoice and a settlement report detailing each
transaction from, the CDRs collected by its Network Control Center.
Should there be any discrepancies in the call detail reports, the items
in question shall be deferred to a further review process. These
discrepancies shall in no way delay the settlement process as a whole
and will be treated as a separate deficiency to be reconciled within a
period of 30 days.
E. Term of Agreement
The initial term of this Agreement is for a period of two (2) years and
shall be extended on an annual basis thereafter unless terminated under
the terms of Clause 3 of the General Terns and Conditions of this
Agreement.
189
<PAGE>
10.2 p3
GENERAL TERMS AND CONDITIONS
Clause 1 - Copyright and Confidentiality
1.1 Each Party agrees to maintain in strict confidence all plans, designs,
drawings, trade secrets and other proprietary information of the other
Party which is disclosed pursuant to this Agreement.
1.2 Golden Access retains title to all portions, excluding third party
licenses, of the software associated with the Product. A Non-Disclosure
Agreement, as per Appendix A, shall be signed by both Parties.
Clause 2 - Prices/Payment Terms
2.1 All prices are FOB Miami, FLA, USA
2.2 Golden Access reserves the right to charge interest on all delinquent
payments at an annualized rate of 2 percentage points above the
commercial rate as listed by its banking institution.
2.3 The Golden Access prices do not include the cost to Golden Access or
its employees of any taxes, duties, levies or other like charges
payable by them or any of them under the laws or regulations in force
in countries other than the United States and to the extent that such
taxes, duties, levies and other like charges are required to be paid,
these shall be borne solely by the Customer.
Clause 3 - Warranty
3.1 Golden Access warrants that the Product shall be free of defects and
perform in accordance with Golden Access's specifications for a period
of ninety (90) days from delivery to the Customer. Golden Access" sole
obligation under this warranty shall be to provide remote Technical
Support as outlined in Appendix A in an effort to remedy the defect.
The warranties in this article will be voided if the Product is
modified in any way by the Customer and/or its agents without written
authorization from Golden Access. GOLDEN ACCESS DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OF IMPLIE, INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
190
<PAGE>
10.2 p3 cont.
Clause 4 - Liability
4.1 Under no circumstances shall Golden Access, its employees or
contractors be liable for any direct, indirect, incidental, special,
punitive or consequential damages that may result in any way from the
negligence or acts of the Customer or its agents, the failure or
malfunction of non-Golden Access equipment, the Customer" (or Customer"
authorized users) use of, or inability to use the Product or any part
thereof, resulting from errors, omissions, interruptions, delays in
operation or transmission, or any failure of performance of the
Internet and/or PSTN networks.
4.2 Neither Golden Access or its third party licensors will be liable for
indirect, incidental, special or consequential damages including but
not limited to lost data or lost profits, however arising, even if it
has been advised of the possibility of such damages. The liability of
Golden Access and its third party licensors for damages under this
agreement shall in no event exceed the amount paid by the Customer to
Golden Access under this Agreement for the Product as to which the
claim rose.
Clause 5 - Force Majeure
5.1 Golden Access shall not be liable for any delay or failure in
performance on any part of this Agreement to the extent such delay or
failure is caused by an event of Force Majeure, including but not
limited to, fire, flood, explosion, accident, war, strike, embargo,
government requirement, civil or military authority, Act of God,
inability to secure materials, labour or transportation, acts of
omissions of common carrier or warehouseman, or any other causes beyond
their reasonable control. Any such delay or failure shall suspend the
Agreement until the Force Majeure condition ceases and the Term shall
be extended by the length of the suspension.
191
<PAGE>
10.2 p4
Clause 6 - Suspension/Termination
6.1 Either Party may, by written notice to the other Party, suspend or
terminate its obligations under the Agreement
a) in the event that either Party shall have failed to pay or authorize
payment of any such sun to the other Party when due under the
Agreement; or
b) in the event that either Party is in breach of the Agreement
and shall fail after receiving not less than thirty (30) days
written notice to take effective steps to remedy such breach;
or
c) in the event that either Party goes into liquidation except
for the purposes of corporate reorganization or otherwise
ceases trading.
Any suspension or termination as a result of the foregoing, does not
absolve the Customer from its obligations to pay any outstanding
invoices due under the Agreement.
Clause 7 - Effective Date of Agreement
7.1 This Agreement shall become effective on that date which it is duly
initialed, signed and dated by authorized representatives of Golden
Access and the Customer. Neither Party may assign, transfer the whole
or any part of this Agreement to anyone without written consent by the
other Party.
Clause 8 - Arbitration and Jurisdiction
8.1 All differences and disputes between the Parties arising from this
Agreement which cannot be settled by mutual agreement shall be finally
settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce (ICC). The arbitration proceeding
shall take place at Miami, Florida and the language of the arbitration
proceeding, the award and all documents filed of submitted in
connection therewith shall be in English.
8.2 This Agreement shall be governed, construed and interpreted in
accordance with the laws of State of Florida, USA.
8.3 All correspondence relevant to the performance of this Agreement shall
be in English and when given to Golden Access, should be addressed to:
Golden Access Group
1865 Brickell Avenue A-1609
Miami, FLA 33129
And given to the Customer, should be addressed to:
This agreement supersedes all other prior discussions and negotiations between
the Customer and Golden Access and sets forth the understanding between both
Parties as to the intent of this Agreement. It may be modified in writing only,
provided it is signed by a duly authorized representative of both Parties.
INWITNESS WHEREOF, the Parties have executed this Agreement on the date herein;
Golden Access Group Customer
<PAGE>
192
10.2 p5
Appendix A
Confidentiality and Non-/Disclosure Agreement
This agreement is entered into as of ___________________between_________________
and Golden Access Group, WHEREAS, each entity executing this agreement
(hereinafter "Party") agrees that for the purpose of evaluating a potential
business relationship, the parties will disclose and receive information under
the terms and conditions specified below:
NOW THEREFORE, the parties hereby agree as follows:
1. All communications or data, in any form, which are disclosed by one
Party or any of its subsidiary, parent or associate companies
("Disclosing Party") to the other Party or any of its subsidiary,
parent or associate companies ("Receiving Party") and which are to be
protected hereunder against unrestricted disclosure or competitive use
by the Receiving Party shall be deemed to be "Confidential
Information".
2. All Confidential Information, if in writing or other tangible form,
shall be labeled as "Confidential" at the time of its delivery, and, if
oral, shall be identified as "confidential" prior to disclosure.
3. Confidential Information of the Disclosing Party shall e treated as
confidential and safeguarded hereunder by the Receiving Party for a
period of two (2) years from the date of disclosure unless earlier
waived in writing by the Disclosing Party.
4. The Receiving Party agrees that (a) any Confidential Information
disclosed hereunder shall be used by the Receiving Party solely for the
purpose set forth above and (b) except as may be required by applicable
law or legal process, the Receiving Party will not disclose or
disseminate such Confidential Information to anyone, except to those
employees (including employees of its parent, subsidiaries and
affiliates) and professional advisors who have the need to know such
Confidential Information for the purpose for which it is disclosed,
unless and until such time as such Confidential Information:
a) is available generally to the public, other than as a result of a
breach of this Agreement; or,
b) is disclosed lawfully to the Receiving Party by a third party who is
free lawfully to disclose the same; or,
c) is developed independently by the Receiving Party; or
d) The applicable period of confidentiality pursuant to paragraph 3 has
ended.
e) Is already in the possession of the Receiving Party and is subject to
an existing agreement of confidence between parties.
5. The Receiving Party shall use reasonable safeguards against the
unauthorized disclosure of confidential and proprietary information and
shall advise all of its employees and professional advisers having
access to Confidential Information of the obligations hereunder.
6. Upon expiration of the period of confidentiality, or sooner upon
written request of the Disclosing Party, all Confidential Information
in the possession of the Receiving Party shall be returned to the
Disclosing Party or destroyed, at the option and instruction of the
Disclosing Party.
7. It is understood that this Agreement is not intended to, and does not,
obligate either Party to enter into any further agreements or to
proceed with any relationship or other transaction.
8. This agreement shall be governed by and construed in accordance with the laws
of the State of Florida USA.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the date herein.
Company:_______________________ Golden Access Group
Signature:_______________________ _________________________
Name: _______________________ _________________________
193
<PAGE>
10.2 p6
Appendix B
Golden Access Rate Table
194
<PAGE>
10.2 p7
Appendix C
Customer Territory and Rate
Territory: Columbia
Rate: $US 0.05 per minute
195
<PAGE>
10.2 p8
Appendix D
Golden Access Commercial Service Agreement
Technical Support Procedures
In the event that the Customer requires remote Technical Support, Golden Access
will offer this service on a 24 x 7 basis. The procedure is as follows:
1) The Customer may either contact Golden Access at
[email protected] or in the event of a critical problem, contact
the Golden Access 24 hour hotline (+1-305-XXX-XXXX) and report the
problem to the customer service operator.
2) In the event of a non-critical request for Technical Support, Golden
Access will make its best effort to respond to the Customer within the
net available business day to provide further assistance.
3) In the event of a critical request (out of service) for Technical
Support, golden Access will contact the Customer within 4 hours of the
reporting time to commence their investigation into the problem.
4) If No.3 above is caused by non-Golden Access equipment and/or software,
it will be the responsibility of the Customer to directly contact the
suppliers for technical support.
5) In the event that a Customer requests on-site support by Golden Access
personnel, the charge will be $US 750 per day plus living expenses and
return business class airfare at cost.
EXHIBIT 10.3
LEASE FOR OFFICE IN ARGENTINA
LEASE CONTRACT
Between Mrs. MARIA DE LOS ANGELES MOTA, domiciled at Alvear Street 184,
Location, 21 in the city of Cordoba, who shall hereinafter be called the
Landlord and Mr. EDUARDO GUSTAVO CHAPETA (I.D.) N(degree) 14.292.085, domiciled
at Marcelo T. de Alvear N(degree) 30 (illegible) in the city of Cordoba, who by
mutual agreement hereby sign a real estate lease contract which shall be ruled
by the regulations on the matter in force in the Civil Code and the clauses
detailed as follows:
FIRST: Execution of the contract : Mrs. MARIA DE LOS ANGELES MOTA, as Landlord,
rents to Mr. EDUARDO GUSTAVO CHAPETA, the Tenant, who accepts it as such, a real
estate property described as an apartment located in Calle Olmos N(degree) 194,
5th floor A, in the city of Cordoba. The apartment is delivered with a 1 Domec
kitchen, 2 Eskabe heaters, 2 Carrier and Feders air conditioners. SECOND
:Duration of the lease: this contract shall be in force for thirty six
continuous months as of the 1st of June, 1999. It shall, therefore, expire on
May 31st, 2002 without any option for extension. Once the term has expired, as a
penalty clause until he effectively vacates the property, the Tenant shall pay a
daily fine equal to 1% (one percent) of the amount corresponding to rent to the
last month of the contract. Said penalty clause has simply a punitive character
for the lack of prompt return and shall not be interpreted as indemnity for
damages, which the Landlord shall be able to claim independently of such
sanction. The rental periods shall be full calendar months and, in case the
Tenant should move before the end of the month, he shall have to make full
payment of the whole month. THIRD: Price: It is a condition of this contract
that it be executed at stable price and under the protection of National Law
N(degree) 23.928, fixing the rental price, as per mutual agreement between the
parts, in the amount of SEVEN HUNDRED PESOS ($ 700.00) per month CONVERTIBLE TO
United States dollars at a rate of ONE PESO ($1.00) per dollar. The monthly
price of rent shall be modified every month in the same identical proportion as
the aforementioned rate of exchange is modified. Consequently it is hereby
perfectly established that the SEVEN HUNDRED PESOS ($700.00) which constitute
the initial monthly price of rent are the necessary amount to acquire by
exchange the sum of SEVEN HUNDRED UNITED STATES DOLLARS (US$ 700.00), which
every month shall be sufficient to be converted into the same amount of dollars.
If the present contract is extended by legal mandate and the Tenant protected by
the benefits thereof, the Landlord may freely choose to continue during such
extension with the adjustment system agreed upon in this clause or that which
might be legally established, whichever is more convenient to his interests.
FOURTH: Use of the rented property: The real estate property rented by this
contract shall be used by the Tenant exclusively as an office, excluding any
other use. Violation of this clause shall give the Landlord the right to revoke
this contract and demand damages, should there be any thereof. FIFTH: Payment
arrears: Payment of rent shall be made by Tenant at the domicile fixed by the
Landlord in this contract or where (Landlord) shall fix at a later date through
certified means, in advance and no later than the fifth (5th) day of the
corresponding month. The arrears of obligations by the Tenant, shall be incurred
into as per law as of the due date
<PAGE>
of the period established by contract without the need for any previous
notification or interpellation. The lack of payment of rent in the established
date (the fifth day of each month) shall give the Landlord the right to apply a
punitive interest equivalent to 0.33% per day of the amount in arrears. To that
effect, the fractions of a month shall be computed as whole. All this without
prejudice to the application of legal compensatory interest and without
prejudice on the part of the Landlord of legal actions she might execute for the
collection of the rent and for the eviction from the rented real estate for lack
of payment of the corresponding rent. SIXTH: Prohibition : The Tenant is hereby
totally forbidden to transfer, sub-rent, to be replaced by third parties
relinquish the property or his rights thereon wholly or partially without
express authorization in writing by the Landlord. SEVENTH: Receiving of the
rented property: The Tenant declares that he has visited and examined the rental
property and he receives it to his satisfaction, stating that the same is in
good condition and clean, undertaking the obligation to maintain and return it
to the Landlord in the same good condition he received it, with the walls worn
out such as is the consequence of good use, free of occupants and/or objects. It
is completely forbidden to him to make reforms without express authorization in
writing by the Landlord. If he made such reforms, without prejudice to the
responsibilities derived from his lack of compliance, the Landlord may, at her
free option: a) demand the return of the property in its original condition at
the expense of the Tenant, and/or leave them as improvements of the property
without having to pay any indemnity or compensation for them. EIGHTH: Tenant's
obligations: The Tenant shall have the following obligations: a) to promptly pay
all utility expenses such as gas, power, Cordobesas waters, etc. and all
services rendered to the property during the term of this contract. The Tenant
shall prove those payments by delivering to the Landlord the corresponding
receipts; b) placing to his name the power, gas and Cordobesas water services at
his expense and, when the time comes to effect the return of the property, he
shall have to present the corresponding certificate of freedom from debt on
those services, as well as the suspension of the same, as an essential condition
for the receipt of the property (by Landlord), otherwise having to keep on
paying rent and charges as due; c) to repair at his own expense, and without
right to claim any compensation, any obstruction in the sanitary services,
electrical service, rain drainage, sewer, roof leaks, window panes, fixtures and
any other broken items, malfunction or alteration present in the property. If
the Tenant does not make such repairs, the Landlord shall be able to make them,
keeping the right to claim all expenses caused by them; d) pay the cost and
expenses required by judicial an extra-judicial processes needed as a
consequence of the lack of compliance by the Tenant of any of the obligations
derived from this contract. NINTH: Delivery of the keys: The delivery of the
keys to the property shall be justified by the Tenant with a written document
from the Landlord. No other proof shall be admitted. TENTH: Lack of compliance:
The lack of compliance by the Tenant of any obligation in this contract,
especially the lack of payment of two consecutive months of rent, shall give the
Landlord the right to demand the immediate evacuation of the property as if it
were due term and to demand damages, should there be any. ELEVENTH: Stamping of
the contract: the replacement of the seals of this contract shall be wholly the
responsibility of the Tenant.
<PAGE>
TWELVETH: Guarantors: Mrs. CRISTINA VIVIANA GOMEZ
D.N.I (ID) 13.535.429, domiciled at Rio Bamba Street N(degree) 323 B(degree)
Quebrada de las Rosas, in the city of Cordoba, who signs this contract jointly
with the contracting parties, in full conformity, agrees to be full guarantor,
without restriction and be principal payer of all obligations emerging from this
instrument until the day the property is delivered, vacant, by the Tenant and
received in conformity by the Landlord or her representative, renouncing as of
now to the benefits of excuse, division, previous notice and all others agreed
to in the law for guarantors. The Landlord shall have the right to demand the
replacement of the guarantor in case of insolvency, demise or disappearance of
the same, within the ten (10) working days of notifying the Tenant. Otherwise
she will have the right to rescind the contract and request the evacuation of
the property. The guarantor directly affects as the best support for fulfillment
of the guarantee the assets belonging to him (her) indicated hereinafter, which
the Landlord has accepted as guaranty. THIRTEENTH: Property in Guarantee: Mrs.
CRISTINA VIVIANA GOMEZ offers in proprietary guarantee a real estate property
registered under entry N(degree) 130.886, Year 1997, in the registry of the
province of Cordoba. In case of selling or mortgaging said real estate property,
he (she) shall communicate such transaction within 48 hours of its occurrence.
NONATTACHMENT: Both, the Tenant and the guarantor expressly renounce to the
nonattachment benefits by automatic registration as a family asset accorded by
National Law N(degree) 14.394 and Provincial Law N(degree) 6.074 as well as to
all concurrent and/or modifying laws of the same. FIFTEENTH: Eviction: The lack
of compliance with any of the clauses in this contract shall give the Landlord
the option to demand eviction from the rented property, with prior notification,
in the terms defined by Law N(degree) 23.091, Article 5, reserving the right to
claim damages.
SIXTEENTH: Domicile for payment: The domicile for payment of the rent is Alvear
Street 184, location 21, in the city of Cordoba.
SEVENTEENTH: Domicile Jurisdiction: For all effects that may arise in the
compliance of this contract, the contracting parties designate special domiciles
in those hereinabove mentioned, to those ends they submit themselves to
jurisdiction of the "Tribunales Ordinarios" (Regular Courts) of the city of
Cordoba (province of Cordoba), renouncing to any other one of exception which to
which they might be entitled. The parties in agreement and undertaking the
obligation of its strict compliance, as per law, they sign three copies of the
same tenor towards the same effect in the city of Cordoba.
Signature (illegible) Signature (illegible) Signature (illegible)
Cristina Viviana Gomez E. G. Chapeta
EXHIBIT 10.3A
LEASE FOR OFFICE IN MIAMI
204
<PAGE>
10-3A-1
SUBLEASE
This Sublease dated as of October 15th, 1999, is made by and between Smith &
Nephew, Inc., a Delaware corporation ("Sublessor"), and Joss Maur, Ltd, a
______________ corporation ("Sublessee").
PRELIMINARY STATEMENTS
A. Smith & Nephew Endoscopy, Inc. (now Smith & Nephew, Inc.) entered into a
certain Office Lease Agreement with WRC Properties, Inc. ("Lease") with
respect to a certaintion of premises located at 6161 Waterford, located at
6161 Blue Lagoon Drive, Miami, Florida 33126 ("Premises"). A copy of the
Lease is attached hereto as Exhibit "A" and made a part hereof.
B. Sublease wishes to sublet Premises from Sublessor on the terms and conditions
contained herein.
NOW THEREFORE, in consideration of the foregoing and the covenants contained
herein, the parties agree as follows:
AGREEMENTS
1. Application of Terms of Lease: Except as provided below, the terms,
conditions and respective rights and obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and
conditions of the Lease, except for those provisions of the Lease which
are directly contradicted by this Sublease, in which event the terms of
this Sublease shall control over the Lease. Therefore, for the purposes of
this Sublease, except for the obligations of Landlord under the Lease,
wherever in the Lease the word "Landlord" is used it shall be deemed to
mean the Sublessor herein and wherever in the Lease the word "Tenant" is
used it shall be deemed to mean the Sublessee herein. The obligations of
Landlord under the Lease shall remain the obligations of Landlord.
2. Assumption of Obligations: During the term of this Sublease and for all
periods subsequent for obligations which have arisen prior to the
termination of this Sublease, Sublessee does hereby expressly assume and
agree to perform and comply with, for the benefit of Sublessor and
Landlord, each and every obligation of Sublessor under the Lease except
for the following paragraphs which are excluded therefrom: Lease
Paragraphs 1.3; 1.5(I); 1.6; 1.7; 3.3; 33; 39.7; 39.8; 39.16; and
39.17. The obligations that Sublessee has assumed under Section 2 hereof
are hereinafter sometimes referred to as the "Sublessee's Assumed
Obligations".
3. Premises: Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor for the term, at the rental, and upon all of the
conditions set forth herein, the Premises.
205 27
<PAGE>
4. Term:
4.1 Term: The term of this Sublesse shall commence on October 15, 1999
("Commencement Date") and end on February 14, 2001 ("Termination Date").
Whenever the context requires, where the term "Commencement date" is used
in the Lease for purposes of calculating a period of time, such term shall
have the meaning ascribed in the Lease, rather than this Sublease.
Sublesses shall have no right to extend or renew the term of this Sublease
or the Lease.
4.2 Delay in Commencement: If for any reason Sublessor cannot deliver
possession of the Premises to Sublessee on the Commencement Date,
Sublessor shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Sublease or the obligations of
Sublessee hereunder or extend the term hereof, but in such case Sublessee
shall not be obligated to pay any rent until possession of the Premises is
tendered to Sublessee; provided, however, that if Sublessor shall not have
delivered possession of the Premises within thirty (30) days after the
Commencement Date, Sublessee may, at Sublessee's option, by notice in
writing to Sublessor within ten (10) days thereafter, cancel this
Sublease, in which event the parties shall be discharged from all
obligations hereunder.
5. Rent: Sublessee shall pay to Sublessor, as "Base Rental" for the Premises,
without off-set or deduction, the amount of Five Thousand Four Hundred
Eighty-Eight 33/100 Dollars ($5,488.33) per month, plus applicable sales
tax.
6. Security Deposit: Sublessee shall deposit with Sublessor upon Sublessee's
execution hereof the sum of Sixteen Thousand Four Hundred Sixty-Four
99/100 Dollars ($16,464.99) ("Security Deposit"), plus applicable sales
tax as security for Sublessee's faithful performance of Sublessee's
obligations hereunder. If Sublessee fails to pay Base Rental or other
charges due hereunder, or otherwise defaults with respect to any provision
of this Sublease, Sublessor may use, apply or retain all or
any portion of said Security Deposit for the payment of any rent or other
charge in default or for the payment of any other sum to which Sublessor
may become obligated by reason of Sublessee's default, or to compensate
Sublessor for any loss or damage which Sublessor may suffer thereby. If
Sublessor so uses or applies all or any portion of said Security deposit,
Sublessee shall, within ten (10) days after written demand therefor,
deposit cash with Sublessor in and amount sufficient to restore said
Security deposit to the full amount stated above and Sublessee's failure
to do so shall be a material breach of this Sublease. Sublessor shall not
be required to keep said Security deposit separate from its general
account. If Sublessee performs all of Sublessee's obligations hereunder,
said Security Deposit, or so much thereof as has
not theretofore been applied by Sublessor, shall be returned, without
payment of interest to sublessee at the expiration of the term hereof, and
after Sublessee has vacated the Premises. No trust relationship is created
herein between Sublessor and Sublessee with respect to said Security
deposit.
206 28
<PAGE>
7. Condition and Use of Premises: Sublessee has inspected the Premises and
determined that it is suitable for Sublessee's purposes. Neither Sublessor
nor "Broker" (as defined below) makes any representation or warranty as to
the condition of the Premises or the suitability for the conduct of
Sublessee's business.
8. Lease Indemnification and Insurance:
8.1 Subordinate to Lease: This Sublease is and shall be at all times subject
and subordinate to the Lease. Without limitation, Sublessor's obligations
hereunder are conditioned upon the receipt of the Lessor's consent to this
Sublease.
8.2 Indemnification: Sublesses shall indemnify Sublessor and hold Sublessor
and Sublessor's officer, directors, shareholders, agents, representatives,
employees and attorneys free and harmless of and from all liability,
judgements, costs, damages, claims or demands, including attorneys' fees
and court costs actually incurred and including costs of appeal,
settlement or defense as well as the obligation to assume such defense if
so requested, arising out of: Sublessee's failure promptly to comply with
or perform Sublessee's Assumed Obligations; Sublessee's use of the
premises; the conduct of Sublessee's business or from any activity, work
or thing done, permitted or suffered by Sublessee in or about the Premises
or elsewhere; or arising out of any act or omission of Sublessee or
Sublessee's employees, agents, representatives or invitees.
8.3 Insurance: Sublessee shall provide Sublessor with certificates of
insurance naming Sublessor as an additional insured for all insurance
policies Sublessee is required to maintain under the Lease. The
certificates of insurance shall not be cancelable or modified without at
least thirty- (30) day's prior written notice to Sublessor.
9. Broker's Commission: Sublessor and Sublessee each warrant to the other
that neither has had any dealings with any real estate broker or agent in
connection with this Sublease except that Sublessor has been represented
by Codina Realty Services, Inc. ("Broker"). Sublessor shall pay a Broker's
commission to Broker in accordance with the agreement between Sublessor
and Broker, if any. Each party hereto shall defend,
indemnify and hold the other harmless from any claim for any compensation,
commission, fee or other charge by any finder or any other real estate
broker or agent, other than as aforesaid, claiming through the
indemnifying party.
10. Notices: The addresses of Sublessor and Sublessee for purposes of Section
23.1 of the Lease are as follows:
207 29
<PAGE>
10.3A-4
Sublessor: Smith & Nephew, Inc.
Endoscopy division
160 Dascomb Road
Andover, Massachusetts 01810
Attention: President
With copy to: Smith & Nephew, Inc.
1450 Brooks Road
Memphis, Tennessee 38116
Attention: General Counsel
Sublessee: Attention:
11. Confidentiality: The provisions of Section 5 of this Sublease are
considered confidential by Sublessor and Sublessee agrees not to disclose
the provisions of Section 5 of this Sublease to any third parties without
the prior written consent of Sublessor.
12. Utilities: Section 11 of the Lease is amended by adding the following
between the words "utilities" and "and" in the first line: "trash disposal
service and security service".
13. Landlord Consent: This Sublease shall not be effective unless and until
the Landlord has approved and consented to this Sublease.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease the day and
year set forth above.
"Sublessor"
SMITH & NEPHEW, INC.
By: ______________________________
Name: ____________________________
Title: _____________________________
"Sublesse"
Joss Maur, Ltd.
By: ________________________________
Name: ______________________________
Title: _______________________________
208 30
<PAGE>
10.3A-5
CONSENT
WRC Properties, Inc., Landlord, hereby consents to the foregoing Sublease.
WRC Properties, Inc.
By: ________________________________
Name: ______________________________
Title: _______________________________
Date: _______________________________
209 31
<PAGE>
10.3A-6
NOTE: THIS IS A COPY OF A CHECK FROM JOSS MARU LTD INC IN THE AMOUNT
OF $17,535.21
210 32
<PAGE>
EXHIBIT 10.4
GOLDENACCESS RESELLER AGENCY AGREEMENT
WITH DISCAR
211
<PAGE>
Distribution Agreement
THIS AGREEMENT, made and entered into as
of this 6TH day of July, 1999, by and between Golden Access Group, a corporation
organized and existing under the laws of the State of Florida, with offices
located at: 1440 J.F. Kennedy Causeway, #301, North Bay Village, FL
44141(Hereinafter referred to as the "Company") and DISCAR SRL, a corporation/
company organized and existing under the laws of the Argentina with its
principal place of business at: Avellaneda 1307 - Cordoba (5000) ARGENTINA,
(Hereinafter referred to as the ("Distributor").1. DISTRIBUTORSHIPCompany hereby
appoints the Distributor as its non-exclusive Distributor for the products and
materials hereinafter described: (a) Golden Access Group Internet Telephony
Software
(b) The products and materials covered by this Agreement are those listed in the
price list attached as Schedule "A" by this reference made a part hereof. The
prices to be charged by Company to Distributor for the products and materials
may be changed by Company from time to time. Company reserves the rights to
modify, alter, improve, change or discontinue any and all of the products and
materials covered by this Agreement and this Agreement shall cover the sale of
such products and materials as they may be modified, altered, improved or
changed.
2. VALIDATIONA Purchase by the Distributor of products as listed on attached
schedule "A" shall validate this Agreement.
3. TERMS OF SALE AND PAYMENTDistributor shall pay Company for the products and
materials sold to Distributor net 30 days from Invoice. The Company shall extend
these payment terms for orders up to a limit of $US 25,000; provided, however,
that if at any time in Company's opinion the financial condition of Distributor
so warrants, Company may alter or suspend any credit terms granted. For orders
above the $US 25,000 limit, the terms of payment shall be cash with order,
C.O.D. or as otherwise determined by the Company. Company further reserves the
right to assess an interest penalty on past due accounts of 1.5% per month on
any outstanding balances, including reasonable attorneys fees incurred in
collection of said past due accounts.
212 <PAGE>
4 RELATIONSHIP OF PARTIES
(a) It is agreed that Distributor is not an agent or representative of Company,
but is solely an independent contractor without the power to bind, act for, or
obligate Company expressly, implied or in any manner whatsoever. Accordingly,
any resale of the products and materials of the Company by Distributor shall be
in Distributor's name only with no representations concerning Company. However,
Distributor is authorized to represent itself as an authorized Distributor of
Company. All salesmen or other employees used by Distributor shall be and be
deemed to be exclusively Distributor's employees, and the entire management,
direction and control of all such salesmen and employees shall be exclusively
vested in the Distributor. Without limiting the generality of the foregoing,
Distributor shall be exclusively responsible for all social security, state,
federal and foreign taxes, unemployment compensation and workmen's compensation
insurance for all such salesmen or other employees of the Distributor. The
Distributor shall be exclusively responsible for all wages, salaries, traveling
expenses or any other expenses of any kind whatsoever incurred by the
Distributor or by any of its salesmen or other employees. Neither the
Distributor nor anyone associated with the Distributor shall be entitled to
receive any payments from Company by way of compensation, wages, remuneration or
expenses. (b) Company shall have the sole right to accept or reject all orders
submitted to it for sales to the Distributor, to fix the terms and conditions of
sales to the Distributor on an order by order basis and to approve returns,
allowances or other adjustments with reference to such sales. (c) Company shall
have no liability with respect to alleged defective products and materials sold
by Company except as set forth in Company's warranty at stated in Clause 6
herein, as part of the terms and conditions of any sale made by Company, and
Distributor shall have no authority to, and shall make no representation for a
warranty with respect to the Company's products and materials contrary to or
inconsistent with Company's warranty.
The Company specifically disclaims all warranties expressed or implied,
including but not limited to, implied warranties of merchantability and fitness
for a particular purpose with respect to defects in the diskette, or other
physical media and documentation, operation of the programs, source code and any
particular application or use of the software or hardware. In no event shall the
Company be liable for any loss of use, interruption of business, or any
indirect, special, incidental, or consequential damages of any kind including
loss of profits regardless of the cause of action including tort liability.
(d) Neither party hereto shall be liable to the other for any failure to perform
its obligations hereunder except for failure to pay, if such failure is due to
fires. floods, strikes by third parties, work stoppages, accidents, wars, acts
of God, force majure, or any other cause beyond the control of the party failing
to perform, (e) Company reserves the right to sell its products directly to the
end user.
213
<PAGE>
5. RESPONSIBILITIES OF DISTRIBUTOR
(a) Distributor shall use its best efforts to promote the use and sale of
Company products and materials to users of the same in the Distributor's primary
area of marketing responsibility.
(b) No order placed by Distributor shall be binding upon the Company until and
unless the Company has acknowledged it in writing.
(c) Distributor, at their discretion, can refer to the Company any of their
customers who wish to purchase an Internet Telephony Gateway direct from the
Company. In the event a Purchase Agreement is concluded between the Company and
the referral, the Company agrees to pay the Distributor a commission of 5% on
the value of the sale. Additionally, the Distributor, at their discretion, can
refer to the Company any of their customers who wish to connect their Internet
Telephony Gateway purchased from the Distributor to the Company's network. In
the event a Service Agreement is executed between the Company and the referral
customer, the Company agrees to pay the Distributor, a commission of 5% on the
total volume usage by the referral customer on the Company's network.
(d) Distributor shall not authorize the return of any product or materials
unless given specific advance written authorization by the Company to do so.
Failure to request product return within 10 days of receipt will connote the
acceptance of the products so sold. (See section 12)
(e) Distributor agrees that all information supplied by Company including, but
not limited to, information pertaining to the conduct or details of Company's
business, its processes, formulae, machines, devices, products and materials,
and list of Company's customers are furnished for Distributor under this
Agreement only and shall be kept in confidence by Distributor. Distributor
further agrees that the Documents containing such information shall not be
duplicated or the information contained therein disclosed to others or used for
manufacturing or any other purpose without the prior written approval of
Company. However, Company agrees that such information maybe disclosed to a user
by Distributor's employees to the extent necessary to reasonably perform under
this Agreement. Upon termination, Distributor agrees to immediately return to
Company all processes, formulae, devices materials etc.
Distributor acknowledges and agrees that the Software licensed hereunder and all
copies thereof constitute valuable trade secrets of Company or proprietary and
confidential information of Company and title thereto remains in Company. All
applicable copyrights, trade secrets, patents and other intellectual and
property rights in the Software and all other items licensed hereunder are and
remain in Company. All other aspects of the Software and all other items
licensed hereunder, including without limitation, programs, methods of
processing, specific design, and structure of individual programs and their
interaction and unique programming techniques employed therein, as well as
screen formats shall remain the sole and exclusive property of Company and shall
not be sold, revealed, disclosed or otherwise communicated, directly or
indirectly by Distributor to any person, company or institution whatsoever other
than for the purposes set forth herein. It is expressly understood that no title
or ownership of the Software or any part thereof is hereby transferred to the
Distributor.
214 <PAGE>
The core product may be stored or installed on a storage device, such as a
network server, used only to install or run the Core product on other computers
over an internal network; however, a license must be acquired and dedicated for
each separate computer on which the core product is installed or run from the
storage device. A license for the Core product may not be shared or used
concurrently on different computers.
(f) Distributor agrees that it will
indemnify and hold harmless the Company, its officers, agents, servants and
employees from and against any loss, cost damage, claim, expense or liability,
including reasonable attorneys fees and costs in the defense and or prosecution
of such actions on the trial and appellate levels by reason of property damage,
personal injury, suit, or other claim against the Company resulting from or in
connection with the actions of Distributor's officers, agents, servants or
employees.
(g) Distributor shall be liable for all costs incurred as a result of its
failure to timely correct erroneous instructions to the Company. Examples of
such erroneous instructions include but are not limited to erroneous information
pertaining to sales orders and telephone or telegraphed instructions.
(h) Distributor agrees not to use the Company' s trademarks or trade names in
any manner except as authorized by Company or in connection with Company's
literature. Distributor agrees to forthwith discontinue such usage upon the
cancellation of this Agreement.
(i) Service: the Distributor shall, at his expense, perform, when needed,
conventional field servicing of the products and materials sold through him.
Distributor agrees to use only Company factory approved plans and procedures or
equivalent to repair Company products and materials and to charge the end user
customer for such repairs at reasonable rates.
(j) The Distributor shall co-operate with Company in the fixing from time to
time, in advance, of a yearly sales quota for sale by the Distributor of the
products included in this Agreement, The Distributor agrees that it will use
sufficient sales efforts to achieve such quotas and to that end, the Distributor
agrees:
215 <PAGE>
(1) to demonstrate such products and materials and such other products and
materials as may hereafter be included in this Agreement to potential
customers,
(2) to follow up promptly any leads within the territory that Company may
refer to him hereunder,
(3) to permit Company's representatives from time to time to address sales
meetings to the Distributor's sales force.
(k) Distributor shall purchase sufficient amounts of Company products,
materials, and parts to enable Distributor to meet demands for users of
the same within its primary areas of marketing responsibility
216
<PAGE>
6. RESPONSIBILITIES OF THE COMPANY(a) Company shall provide Distributor with
appropriate books, other specimens and/or exhibits of products and materials,
including NFR (Not For Resale) demonstration software. Such sample books,
specimens and/or exhibits and/or other paraphernalia for exhibit purposes are
the exclusive property of the Company and Distributor shall fully protect and
safeguard them against loss and/or damage, and said items and/or paraphernalia
shall be subject to be used, disposed of, transferred, and/or handled as
directed by Distributor by Company (b) Company shall from time to time provide
Distributor with suggested resale prices for Company products and materials sold
to Distributor hereunder; provided, however, that nothing in such suggested
prices so furnished shall be such as to obligate Distributor to follow the same
in reselling products or materials purchased by it from Company hereunder.(c)
Warranty: Company warrants for a period of ninety (90) days that the media
containing the product shall be free from defects. The Company does not warrant
that the product will meet the Distributor's requirements or that the product
will operate in the configurations which the Distributor may select to use,
unless previously approved in writing by the Company or that the operation of
the Product will be uninterrupted or error-free, or that all error conditions
will be corrected. In the case of a detected software error, Company will try to
fix it and send a patch or new version to Distributor within a reasonable time.
(d) Change Notices: Company agrees to give Distributor thirty (30) days advance
notice of significant model changes and changes in Company current price lists,
provided. However, that company shall not be liable for failure to notify
Distributor due to inadvertence, accident, or mistake.(e) So long as this
Agreement shall remain in full force and effect, and Distributor has not
defaulted hereunder, Company agrees:
1. To provide to Distributor sales information and advice on a continuing
basis, and to provide such sales leads as may develop from Company's
own advertising and sales promotion.
2. To train personnel designated by Distributor in the operation of the
Golden Access Internet Telephony software as purchased by Distributor
and to further help Distributor in increasing business by providing
information on successful selling techniques, notice of business
practices and policies, technical information relating to the operation
of Golden Access Internet Telephony software as purchased by
Distributor, competitive information, and other such information as may
enhance the opportunities for conducting a profitable business.
3. To provide remote Technical Support, on an as-required basis to the
Distributor only and not their end-users. The Distributor may either
contact the Company by email at [email protected] or by
telephone at +54-351-421-0056 and report the problem. Golden Access
will makes it best effort to respond to the Distributor within the next
available business day to provide further assistance.
217
<PAGE>
7. DURATION OF AGREEMENT AND TERMINATION
(a) This Agreement shall continue in effect for a period of one (1) year from
the date of its execution, and Distributor has not defaulted hereunder, and
thereafter from year to year unless either party shall give the other thirty
(30) days written notice prior to the end of the initial or any extended term
thereof, of its desire to terminate the Agreement at the expiration of such
term.(b) In the event that at any time during the duration of this Agreement or
any extension thereof the Distributor is adjudged bankrupt or shall make an
assignment for the benefit of its creditors, or a receiver is appointed for it
or for any of its properties or it is adjudged to be insolvent, the Company
shall have the right, at its election, to cancel this Agreement forthwith by
giving written notice to that effect. 8. USE OF NAME (a) Upon written notice
from Company or upon expiration or termination of this Agreement, Distributor
agrees to promptly
discontinue using the Golden Access Group name, logo, or trade name and
trademarks.
(b) Distributor shall have no rights, other than those specifically set forth
in this Agreement, to use any trademark, trade name or names or any
contraction, abbreviation or similitude thereof belonging to Company,
without the prior specific approval of Company. Distributor may not
incorporate Golden Access Group name or logo or trade name into company
name.
9. WAIVERThe failure of either party hereto to exercise any right hereunder
shall not be deemed to be a waiver of such right, and the failure of either
party to cancel this Agreement for breach or default shall not be deemed to be a
waiver of the right to do so for any subsequent breach.
10. ASSIGNMENT
This Agreement cannot be transferred and/or assigned by the Distributor to any
Third party without the prior written approval of the Company, which approval
may be unreasonably withheld. Any change in ownership or control of the
Distributor can be cause for cancellation.
218
<PAGE>
11. ENTIRE AGREEMENT
This Agreement constitutes the full and complete understanding between
Distributor and Company and no amendments hereof shall be considered binding
and/or effective unless such amendment is effectuated in writing, by mutual
consent, in the form of an addendum to this Agreement. No renewals and/or
extensions of this Agreement or any addendum shall be made except by specific
written agreement thereof by the parties hereto. If it is necessary to employ an
attorney to enforce any provision of this agreement, Company shall be entitled
to recover reasonable attorney's fees and costs on trial and appellate levels.
12. RETURN OF MERCHANDISE Should an error occur due to Company personnel's
misinterpretation, entering, filling or shipping of a Distributor order, the
merchandise is returnable by Distributor for full replacement, providing the
merchandise is in good condition, and Company will accept the return
transportation charge, if the error is reported within 10 business days. Where
the Distributor desires to return merchandise for any reason other than Company
errors in filling orders, the merchandise must be in (a) In original containers,
(b) saleable according to Company standards, and (c) must be authorized for
return by Company prior to issuance of any allowable credits.
1. When Distributor requests the return of merchandise within 30 days after
the receipt of shipment and such return is authorized, Company will allow
100% of the invoice value in the form of a credit memorandum after
Company's receipt of the returned goods.
2. When Distributor requests the return of merchandise from 30 - 90 days after
the receipt of shipment and such return is authorized, Company will allow
80% of the invoice value in the form of a credit memorandum after Company's
receipt of the returned goods.
3. Transportation charges applicable to merchandise authorized for return must
be pre-paid by the Distributor. 4. Merchandise in the Distributor's possession
longer than 90 days is not returnable.
13. DAMAGED SHIPMENTS AND CLAIMS
In the Event that equipment or supplies are received in damaged condition, the
following procedure shall be used.
1. Distributor shall not repack the merchandise or attempt to return it to
the Company.
2. Distributor shall immediately notify the carrier and ask that an
inspection of the damage be made.
3. Distributor shall notify Company of the receipt of damaged shipment,
giving particulars of the damage so that Company will know which items
are to be replaced.
4. Distributor shall file claim for the damage after the inspection report
has been received from the carrier.
5. Company will advise Distributor what disposition is to be made of the
damaged articles.
14. TAXES
Distributor shall pay any and all applicable sales, use or excise taxes, or
amounts legally levied in lieu thereof imposed under the authority of a federal,
state or local taxing jurisdiction, so long as they are billed as a separate
item on each invoice, or Distributor shall furnish Company with appropriate
exemption certificates.
15. NOTICES
Any notice to be given hereunder shall be in writing and shall be sent by
registered or certified mail postage prepaid to the party to be notified,
addressed to such party at it's address appearing herein or such other address
as such party may by written notice have substituted therefore and the
depositing of such notice in the mail, so addressed, shall constitute the giving
thereof.
219 <PAGE>
Distributor Notification Address:
DISCAR SRL
Avellaneda 1307
Cordoba, 5000
ARGENTINA
Company Notification Address:
Golden Access Group
1440 J.F. Kennedy Causeway, #301
North Bay Village, FL 33141
16. APPLICABLE LAW
This Agreement shall be interpreted and governed in accordance with the laws of
the State of Florida, venue to be Dade County, Florida, United States of
America.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by a duly authorized officer and have caused their seals to be affixed hereto on
the date first written above.
(Attest) (Witness) Company: Golden Access Group
(Seal) _______________________________ (Seal) ____________________________
(By) ________________________________ (By) ______________________________
Print name. Print name.
(Title)_______________________________ (Title) ____________________________
(Attest) (Witness) Distributor:
(Seal) _______________________________ (Seal) ____________________________
(By) ________________________________ (By) PABLO GAGGINO
Print name. Print name.
(Title)_______________________________ (Title) SOCIO GERENTE
220
<PAGE>
SCHEDULE A
- --------------------------------------------------------------------------------
Software, per line Suggested Retail Price Distributor Price
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1-4 $ 1,600 $ 1,040
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
5-8 $ 1,200 $ 780
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
9-16 $ 800 $ 520
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
24 (T1) $ 600 $ 390
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
30 (E1) $ 550 $ 358
- --------------------------------------------------------------------------------
Notes:
- - Price segments are on a "per system" basis.
- - For systems upgrades, the applicable price is that of the segment of
the final number of lines.
EXHIBIT 10.6
TELEPHONE COMPANY
WHOLESALE DISTRIBUTION AGREEMENT
This Agreement is made effective as of the 1st day of the month of April 1999
between International Telephone Company (hereinafter "ITC"), a Delaware
corporation registered in Florida as Interglobal Telephone Company, with its
principal place of business at 110 East Broward Boulevard, Suite 610, Fort
Lauderdale, Florida 33301, United States of America, and Golden Access Group
having its principal place of residence or business in 1865 Brickell Ave, A-1609
Miami, Fl 33129 (hereinafter "Customer" ).
In consideration of the Agreement contained herein, the parties agree to the
following:
I. Nature of Services
ITC will operate an international database that will supply services including,
but not limited to, the re-origination of discounted telephone and data
communication through the ITC corporate headquarters. ITC's service will provide
international real-time billing and comprehensive transactional analyses for the
Customer.
II. Duration of and Termination of Agreement
A. This Agreement shall be binding upon execution by all parties hereto
and shall remain in full force and effect until terminated as set forth herein.
B. Either party may terminate this Agreement upon written notice to the
other party at least thirty days prior to the termination date.
C. Either party may terminate this Agreement for a material breach. The
material breach must be set forth in writing and transmitted to the breaching
party. The breaching party shall have 15 days after receiving the written notice
to cure the breach and present evidence to the non-breaching party of the cure.
If the breach is not cured within 15 days, then the non-breaching party may
terminate this Agreement immediately upon written notice to the other party. Any
violation of the requirements set forth in this Agreement shall constitute a
material breach unless the paragraph specifically provides otherwise.
D. In addition to other remedies herein in the event of a material
breach, ITC may cease services immediately, without demand, notice or delay, in
the event Customer fails to maintain the deposit as required under paragraph (D)
section (IV) .
III. Consideration for Services
In consideration for the services rendered by ITC, Customer shall pay ITC the
fees calculated on the basis of ITC's actual cost plus 20% markup, however, for
the purpose of the Customer's costing requirements, a Schedule of Fees (attached
hereto) will be provided by ITC, which will be calculated on the basis of a
blended cost formula plus 20%. Said Schedule of Fees may be adjusted from time
to time at the discretion of ITC and the new fee schedule shall be provided upon
30 days notice to Customer
IV. Obligations of the Vendor
A. Confidentiality. For the duration of this Agreement and for a period
of two years following the termination of this Agreement, Customer agrees not to
disclose any confidential information to any person, firm, corporation,
association or any entity for any purpose or reason whatsoever, except to
authorized persons following written approval from ITC. In the event of a breach
or threatened breach of this paragraph , the non-breaching party, shall be
entitled to injunctive relief restraining the breaching party from disclosing
such confidential information. Such confidential information includes, but is
not limited to, information on revenues, costs, agents, technical systems
information, relationship with providers or other information regarding the
operation of ITC.
<PAGE>
B. Independent Contractor. Customer shall market and sell at its own
expense the service of ITC. Customer shall act as an independent contractor on
its own behalf. Customer shall be responsible for all supplies, expenses,
insurance, as well as Federal and State taxes resulting from its performance of
this Agreement.
C. Payment Terms. ITC shall invoice Customer on or before the 1st day
of each month with full payment due within 30 days upon receipt of said invoice.
ITC shall also provide an electronic file of the billing data, in a mutually
agreed format, at the same time.
D. Security for Customers' Accounts. Customer shall deposit with ITC,
prior to the performance of any services by ITC, cash and/or an irrevocable
letter of credit from a United States bank or financial institution acceptable
to ITC payable to ITC in an amount sufficient to cover one and one-half (1 1/2)
times the estimated average total monthly charges to Customer. Said deposit
shall be subject to offset by ITC in the event payment of the account balance is
not made by Customer. The term "payment" as used herein shall mean the amount of
money cleared in ITC's United States banking account. Payment shall not include
projected or uncollected amounts and/or amounts that have not been cleared to
ITC's United States banking account. In the event an offset is made against the
required deposit, an additional deposit must be made immediately by Customer to
return the deposit to the required level. ITC retains the right to cease further
performance of service at any time the deposit required herein falls below the
required level, however, must notify Customer seven (7) days prior to such
action, in order to allow sufficient time for corrective action. ITC retains the
right to review the deposit and adjust the required amount necessary to
adequately protect ITC as determined by ITC in their discretion.
V. Obligations of ITC
A. ITC assures that it will use its best efforts to maintain the
highest standards of service and to provide products that will compare with
competitive services.
B. ITC will provide the necessary physical space and facilities to
allow installation of Customer's equipment at ITC's switching premises,
including the provision of an environmentally controlled area that offers
sufficient temperature and power protection.
C. ITC will provide the necessary internal PSTN (T1) connections to the
switching facility that will enable Customer to connect its equipment as
required.
D. ITC will provide the necessary IP connection to support the
installation of Customer's equipment as required.
E. ITC will allow reasonable ease of access to the premises that houses
the Customer equipment to authorized Customer personnel as required.
F. ITC will provide basic technical support (as needed) to
restore/reconfigure the Customer's equipment on a twenty-four (24) hour x seven
(7) day basis under remote supervision of authorized Customer's personnel.
VI. Non-exclusive Territory
Customer will be given a defined geographical region to sell the service of ITC.
The defined geographical region is listed on a Schedule attached hereto. ITC
will determine the number of vendors who will be authorized to market and sell
the service of ITC in a defined region. ITC may have numerous vendors in the
same or similar region. Customer does not have exclusive rights to the territory
defined in the Schedule attached hereto.
VII. Miscellaneous
A. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida.
<PAGE>
B. The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning and interpretation of this
Agreement.
C. This Agreement shall be binding upon and shall operate for the
benefit of the parties hereto and their respective heirs and assigns.
D. This Agreement shall not be amended, supplemented or modified except
by an instrument in writing signed by all parties hereto.
E. Should it become necessary for any party to institute legal action
to enforce the terms and conditions of this Agreement, the successful party
shall be awarded a reasonable attorney's fee, which shall include a reasonable
attorney's fee for any appellate proceedings, expenses, including any accounting
expenses, and costs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
By: ______________________________ By: _______________________________
Golden Access Group
Paul Callihoo
VP Business Development
<PAGE>
Schedule A
Territory of intended solicitation:
1. Worldwide
I understand that I do not have exclusive rights to solicit the above
territory(ies) as stated in section VI of attached Wholesale Distribution
Agreement.
- -------------------------------- ----------------
Signed Date
EXHIBIT 10.7
PURCHASE AGREEMENT AND BILL OF SALE
222
<PAGE>
BILL OF SALE
This BILL OF SALE is given by CLIFFORD Y. PIERCE ("Seller"), to
GOLDENACCESS.COM, INC., a Florida corporation ("Buyer").
WHEREAS, Seller and Buyer are parties to a certain Agreement For Sale and
Purchase of Assets dated July 30, 1999 (the "Agreement"), providing for the
sale, assignment, transfer, conveyance and delivery by Seller to Buyer of all of
the Acquired Assets (as defined in the Agreement).
NOW, THEREFORE, in consideration of the issuance by Buyer to Seller of the
Shares (as defined in the Agreement) and in further consideration of the
premises, terms and conditions contained in the Agreement, the receipt and
sufficiency of such consideration being hereby acknowledged, Seller does hereby
sell, assign, transfer and deliver to Buyer, as of the date set forth below, on
an "as is" and "where is" basis, all of Seller's right, title and interest in
and to all of the Acquired Assets. All of Seller's representations, warranties
and agreements and all of the limitations in the Agreement relating to the
Acquired Assets are incorporated herein by reference.
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES WHATSOEVER RELATING TO THE ASSETS, WHETHER WRITTEN OR ORAL, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR MERCHANTABILITY OR OF
FITNESS FOR A PARTICULAR PURPOSE.
IN WITNESS WHEREOF, the undersigned has caused this Bill of Sale to be duly
executed this 30TH day of July, 1999.
By:
Clifford Y. Pierce
[bks] W:\52206\BILSAL94.BKS
223
<PAGE>
AGREEMENT FOR SALE AND PURCHASE
OF ASSETS
THIS AGREEMENT (the "Agreement"), made as of the 30th day of July, 1999, by
and between GOLDENACCESS.COM, INC., a Florida corporation ("Buyer"), and
Clifford Y. Pierce ("Seller").
RECITALS:
WHEREAS, Buyer is a corporation engaged in the business of developing and
marketing computer software and technology;
WHEREAS, Seller desires to sell to Buyer certain of its assets;
WHEREAS, Buyer desires to acquire such assets, and
WHEREAS, the parties have reached certain agreements concerning the sale
and purchase of the assets, as set forth in this Agreement and in instruments
referenced herein.
NOW, THEREFORE, in consideration of the Recitals and of the mutual
covenants, conditions and agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is hereby agreed as follows:
ARTICLE 1
THE ACQUISITION
Section 1.1 Covenants of Sale and Purchase. At the Closing (as defined in
Section 2.1), and upon and subject to the terms and conditions of this
Agreement, Seller and Buyer mutually covenant and agree as follows:
(a) Seller will sell, convey and assign to Buyer all right, title and
interest of Seller in and to the Acquired Assets (as defined in Section 1.2) on
an "as is" and "where is" basis, free and clear of all liens, pledges, security
interests, charges, restrictions or encumbrances of any nature whatsoever; and
(b) Buyer will purchase the Acquired Assets from Seller in exchange
for the Purchase Price as defined by Section 1.4.
Section 1.2 The Acquired Assets. In this Agreement, the phrase
"Acquired Assets" means and shall include all of the following:
(a) Intellectual Property. All items of intellectual property,
including but not limited to computer software, set forth or described on
Schedule 1.2(a) attached hereto, which the parties have agreed have an aggregate
value of $540,100.
224
<PAGE>
-70-
(b) Hard Assets. All of the items of hard assets set forth or
described on Schedule 1.2(b) attached hereto, which the parties have agreed have
an aggregate value equal to $877,000.
(c) Contracts. All contracts, memoranda of understanding and letters
of intent set forth or described on, or attached to, Schedule 1.2(c) attached
hereto, which the parties have agreed have an aggregate discounted present value
equal to $9,154,000.
(d) Trademarks and Patents. All trademarks, trademark applications,
patents and patent applications set forth or described on, or attached to,
Schedule 1.2(d), which the parties have agreed have an aggregate value equal to
$ TO BE DETERMINED BY ADJUSTMENT.
(e) Lease Obligation. All of Seller's right, title and interest in
and under the lease identified on and attached hereto as Schedule 1.2(e) (the
"Lease"). Buyer shall assume all obligations of Seller under the Lease except
that Buyer shall not be responsible for any rent due under the lease prior to
the Closing Date. Buyer shall be responsible for any costs associated with the
termination of such lease, or associated with any sublease of the space.
Section 1.3 Adjustments. Buyer and Seller agree that the values for the
assets set forth in Section 1.2(a) through (e) are based upon the best
information currently available. Buyer and Seller further agree to adjust the
value of any one or more of those assets consistent with a final audit or
valuation to be conducted and/or completed subsequent to the Closing.
Section 1.4 Payment of Purchase Price. Buyer shall pay to Seller the
Purchase Price solely by issuing to Seller TWO MILLION ONE HUNDRED SIXTY-SIX
THOUSAND SEVEN HUNDRED AND 00/100 (2,166,700) shares of common stock of Buyer
(the "Shares").
Section 1.5 No Assumed Liabilities. On the Closing Date, Seller shall
deliver to Buyer the Acquired Assets, free and clear of any and all liens and
encumbrances. Buyer shall assume no obligations of Seller relative to the
Acquired Assets or otherwise, except for any and all obligations under or
attendant to the Lease attached to Schedule 1.2(e).
ARTICLE 2
CLOSING, ITEMS TO BE DELIVERED,
FURTHER ASSURANCES, AND EFFECTIVE DATE
Section 2.1 Closing. The consummation of the purchase and sale of assets
under this Agreement (the "Closing") will take place at 1:00 p.m. (EST) on July
30TH, 1999 (the "Closing Date"), at the offices of Fowler, White, Burnett,
Hurley, Banick & Strickroot, 100 S.E. Second Street, Seventeenth Floor, Miami,
Florida, 33131, or at such other date, time or place is agreed to in writing by
the parties hereto.
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Section 2.2 Conveyance and Delivery by Seller. On the Closing Date, Seller
will surrender and deliver possession of the Acquired Assets to Buyer and take
such steps as may be required to put Buyer in actual possession and operating
control of the Acquired Assets, and in addition shall deliver to Buyer such bill
of sale and assignments and other good and sufficient instruments and documents
of conveyance, in form reasonably satisfactory to Buyer and its counsel, as
shall be necessary and effective to transfer and assign to, and vest in, Buyer
all of Seller's right, title and interest in and to the Acquired Assets free and
clear of any lien, charge, pledge, security interest, restriction or encumbrance
of any kind.
Section 2.3 Delivery by Buyer. On the Closing Date, Buyer will issue to
Seller, in the name of Seller, one or more original stock certificates
representing, in the aggregate, the Shares.
Section 2.4 Mutual Performances. At or prior to the Closing, the parties
hereto shall also deliver to each other the agreements, opinions, certificates,
and other documents and instruments required hereunder.
Section 2.5 Third Party Consents. To the extent that Seller's rights under
any agreement or other Acquired Asset to be assigned to Buyer hereunder may not
be assigned without the consent of another person which has not been obtained,
this Agreement shall not constitute an agreement to assign the same if an
attempted assignment would constitute a breach thereof or be unlawful, and
Seller, at its expense, shall use its best efforts to obtain any such required
consent(s) as promptly as possible. If any such consent shall not be obtained or
if any attempted assignment would be ineffective or would impair Buyer's rights
under the Acquired Asset in question so that Buyer would not in effect acquire
the benefit of all such rights, Seller, to the maximum extent permitted by law
and the Acquired Asset, shall act after the Closing as Buyer's agent in order to
obtain for it the benefits thereunder and shall cooperate, to the maximum extent
permitted by law and the Acquired Asset, with Buyer in any other reasonable
arrangement designed to provide such benefits to Buyer.
Section 2.6 Further Assurances. Seller from time to time after the Closing,
at Buyer's reasonable request, will execute, acknowledge and deliver to Buyer
such other instruments of conveyance and transfer and will take such other
actions and execute and deliver such other documents, certifications and further
assurances as Buyer may reasonably require in order to vest more effectively in
Buyer, or to put Buyer more fully in possession of, any of the Acquired Assets.
Each of the parties hereto will cooperate with the other and execute and deliver
to the other parties hereto such other instruments and documents and take such
other actions as may be reasonably requested from time to time by any other
party hereto as necessary to carry out, evidence and confirm the intended
purposes of this Agreement.
Section 2.7 Effective Date. The Effective Date of the Agreement and all
related instruments executed at the Closing shall be July 30TH, 1999, unless
otherwise agreed.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF SELLER
Seller represents and warrants to Buyer as follows:
Section 3.1 Authority. Seller has the requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been, and the other agreements,
documents and instruments required to be delivered by Seller in accordance with
the provisions hereof (the "Seller's Documents") will be, duly executed and
delivered by Seller, and this Agreement constitutes, and Seller's Documents when
executed and delivered will constitute, the legal, valid and binding obligations
of Seller, enforceable against Seller in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, or similar laws from time to
time in effect which offset creditors' rights generally and general equitable
principles (regardless of whether the issue of enforceability is considered in a
proceeding in equity or in law).
Section 3.2 Consents and Approvals; No Violations. Except as set forth in
Schedule 3.2, neither the execution, delivery, or performance of this Agreement
by Seller nor the consummation by him of the transactions contemplated hereby
nor compliance by him with any of the provisions hereof will (i) require any
filing with, or permit authorization, consent, or approval of, any court,
arbitral tribunal, administrative agency or commission, or other governmental or
other regulatory authority or agency (a "Governmental Entity"), (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation, or acceleration) under, any of the terms, conditions, or
provisions of any note, mortgage, indenture, lease, license, contract,
agreement, or other instrument or obligation to which Seller is a party or by
which Seller or any of his properties or assets may be bound, or (iii) violate
any order, writ, injunction, decree, statute, rule, or regulation applicable to
Seller or any of his properties or assets, except in the case of (ii) or (iii)
for violations, breaches, or defaults that would not, individually or in the
aggregate, have a material adverse effect on Seller.
Section 3.3 No Third Party Options. There are no existing agreements,
options, commitments, or rights with, of or to any person to acquire any of
Seller's assets, properties or rights included in the Acquired Assets or any
interest therein.
Section 3.4 Absence of Certain Changes. There have been no events or
changes having an adverse effect on the Acquired Assets.
Section 3.5 Software. The computer software of Seller included in the
Acquired Assets (the "Software") performs in accordance with the documentation
and other written material used in connection with the Software, is in
machine-readable form, contains all current revisions of such software, and
includes all computer programs, materials, tapes, know-how, object and source
codes, other written materials, know-how and processes related to the Software.
Seller has delivered to Buyer complete and correct copies of all user and
technical documentation related to the Software.
227 <PAGE>
Neither Seller nor, to the best knowledge of Seller, any employee or agent
thereof has developed or assisted in the enhancement of the Software except for
enhancements included in the Software as delivered to Buyer pursuant thereto or
the development of any program or product based on the Software or any part
thereof. All copies of the Software embodied in physical form are being
delivered to Buyer at or prior to the Closing.
Section 3.6 Litigation. Except as disclosed in Schedule 3.6 there is no
suit, claim, action, proceeding, or investigation pending or, to the best
knowledge of Seller threatened against, Seller. Except as disclosed in Schedule
3.6, Seller are is not subject to any outstanding order, writ, injunction, or
decree which, insofar as can be reasonably foreseen, individually or in the
aggregate, in the future would have an adverse effect on such party or the
Acquired Assets or would prevent such party from consummating the transactions
contemplated hereby. No voluntary or involuntary petition in bankruptcy,
receivership, insolvency, or reorganization with respect to Seller, or petition
to appoint a receiver or trustee of Seller's property, has been filed by or
against Seller, nor will Seller file such a petition prior to Closing Date or
for one hundred days thereafter, and if such petition is filed by others, the
same will be promptly discharged. Seller is solvent on the date hereof and will
be solvent on the Closing Date. Seller has not and at the Closing Date will not
have made any assignment for the benefit of creditors, or admitted in writing
insolvency or that their property at fair valuation will not be sufficient to
pay his debts, nor will Seller permit any judgment, execution, attachment or
levy against him or against any of his properties to remain outstanding or
unsatisfied for more than ten (10) days.
Section 3.7 No Misrepresentations. None of the representations and
warranties of Seller set forth in this Agreement or in the attached exhibits and
schedules, notwithstanding any investigation thereof by Buyer, contains or will
contain any untrue statement of a material fact, or omits or will omit the
statement of any material fact necessary to render the same not misleading,
either at the date hereof or on the Closing Date.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
Section 4.1 Organization. Buyer is a corporation organized, validly
existing and in active status under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority and all
necessary governmental approvals to own, lease, and operate its properties and
to carry on its business as now being conducted except where failure to be so
organized, valid, or active would not, in the aggregate, have a material adverse
effect on Buyer. Buyer is duly qualified or licensed to do business and is in
good standing in each jurisdiction in which the property owned, leased, or
operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be so duly
qualified or licensed and be in good standing would not in the aggregate have a
material adverse effect on Buyer.
Section 4.2 Authority. Buyer has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement, and the consummation of the Agreement and the other transactions
contemplated hereby, have been duly authorized by all necessary corporate action
on the part of Buyer and no other corporate proceeding on the part of Buyer is
228 <PAGE>
necessary to authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly executed and delivered by Buyer and,
assuming this Agreement constitutes a valid and binding obligation of Seller,
constitutes a valid and binding obligation of the Buyer, enforceable against it
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization or similar laws from time to time in effect which offset
creditors' rights generally and general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding in equity or
in law).
Section 4.3 Consents and Approvals; No Violations. Except as set forth in
Schedule 4.3, and except for filings, permits, authorizations, consents, and
approvals as may be required under, and other applicable requirements of, the
Securities Act of 1933, as amended (the "Securities Act") or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), neither the execution,
delivery, or performance of this Agreement by Buyer nor the consummation by
Buyer of the transactions contemplated hereby nor compliance by Buyer with any
of the provisions hereof will (i) conflict with or result in any breach of any
provision of the Articles of Incorporation or the Bylaws of Buyer, (ii) require
any filing with, or permit authorization, consent, or approval of any court,
arbitral tribunal, administrative agency or commission, or other governmental or
other regulatory authority or agency (a "Governmental Entity"), except where the
failure to obtain such permits, authorizations, consents or approvals or to make
such filings would not have a material adverse effect on Buyer, (iii) result in
a violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation, or acceleration) under, any of the terms, conditions, or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement, or other instrument or obligation to which Buyer is a party or by
which Buyer or its properties or assets may be bound, or (iv) violate any order,
writ, injunction, decree, statute, rule, or regulation applicable to Buyer or
any of its properties or assets, except in the case of (iii) or (iv) for
violations, breaches, or defaults that would not, individually or in the
aggregate, have a material adverse effect on Buyer.
Section 4.4 Compliance with Applicable Law. Buyer holds all permits,
licenses, variances, exemptions, orders, and approvals of all Governmental
Entities necessary for the lawful conduct of its business (the "Buyer Permits"),
except for failures to hold such permits, licenses, variances, exemptions,
orders, and approvals that would not have a material adverse effect on Buyer.
Buyer is in compliance with the terms of the Buyer Permits, except where the
failure so to comply would not have a material adverse effect on Buyer. To the
best knowledge of Buyer, the business of Buyer is not being conducted in
violation of any law, ordinance or regulation of any Governmental Entity, except
for possible violations that do not, and, insofar as reasonably can be foreseen,
in the future will not, have a material adverse effect on Buyer. Except as set
forth in Schedule 4.4, as of the date of this Agreement no investigation or
review by any Governmental Entity with respect to Buyer is pending or, to the
best knowledge of Buyer, threatened, nor has any Governmental Entity indicated
an intention to conduct the same other than, in each case, those the outcome of
which, as far as reasonably can be foreseen, in the future will not have a
material adverse effect on Buyer.
Section 4.5 No Misrepresentations. None of the representations and
warranties of Buyer set forth in this Agreement or in the attached exhibits and
schedules, notwithstanding any investigation thereof by Seller, contains or will
contain any untrue statement of a material fact, or omits or will omit the
statement of any material fact necessary to render the same not misleading,
either at the date hereof or at the Closing Date.
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ARTICLE 5
COVENANTS OF SELLER
During the period from the Effective Date of this Agreement and continuing
until the Closing Date, Seller agrees that (except as expressly contemplated or
permitted by this Agreement or to the extent that all the other parties hereto
shall otherwise consent in writing), notwithstanding the fact that such action
might otherwise be permitted pursuant to this Article 5, Seller shall not take
any action that would, or is reasonably likely to, result in any of its
representations and warranties set forth in this Agreement being untrue, or in
any of the conditions set forth in Article 7 not being satisfied.
ARTICLE 6
ADDITIONAL AGREEMENTS
Section 6.1 Access to Information. Upon reasonable notice, Seller shall
afford to the officers, employees, accountants, counsel, and other authorized
representatives of Buyer full access during the period prior to the Closing
Date, to all its books, contracts, commitments and records to the extent that
such is reasonably necessary to protect Buyer's interest under this Agreement.
Each party shall furnish promptly to the other party all other information
concerning its business, properties, and personnel and access for discussions
with such of its management personnel as such other party may reasonably
request. Unless otherwise required by law, the parties will hold any such
information which is nonpublic in confidence, will not use such information in
its business if the transaction does not close and will return such information
if the transaction does not close.
Section 6.2 Expenses. Whether or not the transaction is consummated, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
Section 6.3 Brokers or Finders. Each of the Seller and Buyer represents, as
to itself, its subsidiaries and its affiliates, that no agent, broker,
investment banker, financial advisor, or other firm or person is or will be
entitled to any broker's or finder's fee or any other commission or similar fee
in connection with any of the transactions contemplated by this Agreement, and
each of Buyer and Seller agree to indemnify and hold the other harmless from and
against any and all claims, liabilities, or obligations with respect to any
other fees, commissions, or expenses asserted by any person on the basis of any
act or statement alleged to have been made by such party or its affiliate.
Section 6.4 Additional Agreements; Best Efforts. Subject to the terms and
conditions of this Agreement each of the parties hereto agrees to use its best
efforts to take, or cause to be taken, all actions 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, including cooperating fully with the other parties.
230 36
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ARTICLE 7
CONDITIONS
Section 7.1 Conditions to Obligations of Seller. Except to the extent
otherwise provided in this Agreement, the obligations of Seller to effect this
acquisition are subject to the satisfaction of the following conditions, unless
waived by Seller:
(a) Approvals. All authorizations, consents, orders, or approvals of,
or declarations or filings with, or expirations of waiting periods imposed by,
any Governmental Entity, the failure to obtain which would have a material
adverse effect on Buyer shall have been filed, occurred, or been obtained.
(b) Representations and Warranties. The representations and
warranties of Buyer set forth in this Agreement shall be true and correct as of
the Effective Date and Seller shall have received a certificate signed on behalf
of Buyer by an executive officer of Buyer to such effect.
(c) Performance of Obligations by Buyer. Buyer shall have performed
in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date, and Seller shall have received a
certificate signed on behalf of Buyer by an executive officer of Buyer to such
effect.
(d) 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 transaction, shall be in effect.
Section 7.2 Conditions to Obligations of Buyer. Except to the extent
otherwise provided in this Agreement, the obligations of Buyer to effect this
acquisition are subject to the satisfaction of the following conditions, unless
waived by Buyer:
(a) Approvals. All authorizations, consents, orders, or approvals of,
or declarations or filings with, or expirations of waiting periods imposed by,
any Governmental Entity, the failure to obtain which would have a material
adverse effect on Seller shall have been filed, occurred, or been obtained.
(b) Representations and Warranties. The representations and
warranties of Seller set forth in this Agreement shall be true and correct as of
the Effective Date and Buyer shall have received a certificate signed by Seller
to such effect.
(c) Performance of Obligations by Seller. Seller shall have performed
in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date, and Buyer shall have received a
certificate signed by Seller to such effect.
231 37
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(d) 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 transaction, shall be in effect.
ARTICLE 8
TERMINATION AND AMENDMENT
Section 8.1 Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) by mutual consent of Buyer and Seller; or
(b) by either Buyer or Seller if there shall have been a material
breach of any representation, warranty, covenant or agreement on the part of the
other set forth in this Agreement which breach shall not have been cured, in the
case of a representation or warranty, prior to the Closing or, in the case of a
covenant or agreement, within two business days following receipt by the
breaching party of notice of such breach; or
(c) by either Buyer or Seller if any permanent injunction or other
order of a court or other competent authority preventing the consummation of the
acquisition shall have become final and nonappealable.
Section 8.2 Effects of Termination. In the event of a termination of this
Agreement by either party as provided in Section 8.1, this Agreement shall
forthwith become void and there shall be no liability or obligation on the part
of Buyer or Seller, or any of their respective officers or directors, except to
the extent that such termination results from the willful breach by a party
hereto of any of the representations, warranties, covenants, or agreements set
forth in this Agreement.
Section 8.3 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of Buyer and Seller.
Section 8.4 Extension; Waiver. At any time prior to the Closing Date, the
parties hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto, and (iii) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party.
ARTICLE 9
MISCELLANEOUS
Section 9.1 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied (if
confirmed), or mailed by registered or certified mail (return receipt requested)
to the parties at the following addresses or at such other address for a party
as shall be specified by like notice):
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(a) If to Buyer, to
Goldenaccess.com, Inc.
1915 Brickell Avenue
Unit C-PH1
Miami, Florida
(b) If to Seller, to
Clifford Y. Pierce
1400 John F. Kennedy Causeway
North Bay Village, Florida
Section 9.2 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one 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.
Section 9.3 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership. This Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
Section 9.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without regard to
any applicable conflicts of law.
Section 9.5 Publicity. Except as otherwise required by law or the rules of
the SEC, neither Seller nor Buyer shall issue or cause the publication of any
press release or other public announcement with respect to the transactions
contemplated by this Agreement without the consent of the other party, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing, Buyer
may respond to routine inquiries from securities analysts in connection with the
transactions contemplated hereby.
Section 9.7 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. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by the parties
and their respective successors and assigns.
Section 9.8 Joint Efforts. This Agreement is the result of the joint
efforts and negotiations of the parties hereto, with each party being
represented, or having the opportunity to be represented, by legal counsel of
its own choice, and no singular party is the author or drafter of the provisions
hereof. Each of the parties assumes joint responsibility for the form and
composition of each-and all of the contents of this Agreement and each party
agrees that this Agreement shall be interpreted as though each of the parties
participated equally in the composition of this Agreement and each and every
provision and part hereof. The parties agree that the rule of judicial
interpretation to the effect that any ambiguity or uncertainty contained in an
agreement is to be construed against the party that drafted the agreement shall
not be applied in the event of any disagreement or dispute arising out of this
Agreement.
233
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IN WITNESS WHEREOF, the parties have signed or caused this Agreement to be
signed by their respective officers hereunto duly authorized as of the date
first written above.
- -------------------------------------------------------------------------------
WITNESSES: SELLER:
Clifford Y. Pierce
as to Seller
BUYER
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
as to Buyer
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
234
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SCHEDULE 1.2(a)
Intellectual Property
235
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ViP
A fully integrated solution that allows Internet Telephony Service Providers,
Carriers, and Private corporations to inexpensively route Voice communications
over the Internet. Golden Access's ViP Gateway provides all of the elements - IP
Gateway, Gatekeeper, Global Network and Billing on one easy to configure
platform.
In & Out
The In&OutTM service lets businesses track the job activities of their off-site
employees or subcontractors in real-time. With specialized communications
technology, the location and job status of field workers can be monitored with
up the minute information using only regular telephone service and the Internet.
The enables businesses to accurately bill customers for services provided,
without the need to invest in costly computer systems.
Audio Broadcast
This product provides radio stations anywhere in the world with the capability
to broadcast their content over the Internet. By the use of our server located
in the U.S., and the ability to capture real-time or taped audio broadcasts, we
can create a global presence for any radio station.
Video Broadcast
Through the use of sophisticated technology and Internet capabilities, any type
of programming can be captured Golden Access either live, via satellite or on
submitted videotape and held on our RealPlayer Server for customers to view at
any time. For the television station, this represents the opportunity to expand
their market outside the local viewing area (international audience) and develop
additional advertising revenue streams based on the continuous availability of
advertising space on the Internet. Free structures for this service vary and are
usually dependent upon the number of viewers that can be supported at any
one-time.
Voice Mail
This product allows a subscriber to send and retrieve voice mail messages from
anywhere in the world via the Internet. This provides an inexpensive way staying
in touch with business, family or friends. The subscriber would purchase a
prepaid voice message calling car for $19.95 a month, which allows the user to
have a voice mail account with Golden Access. The user can leave unlimited voice
mail messages of up to 5 minutes each, which business associates, friends and
family can retrieve with the use of the subscriber's Personal Identification
Number (PIN).
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Follow Me
This product offers the same functionality as the Voice Mail plus the capability
to have calls forwarded to you anywhere in the world, thus providing the
subscriber with a greater degree of privacy. With these forwarded calls, the
subscriber has the option of receiving the call or having it transferred to your
mailbox. This is an ideal solution for the business traveler and the
supplemental cost of this product would be the rates charged by Golden Access
which are dependent upon the location of the forwarded calls.
237
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SCHEDULE 1.2(b)
Hard Assets
TO BE PROVIDED BY AMENDEMENT
238
<PAGE>
SCHEDULE 1.2(c)
Contracts
TO BE PROVIDED BY AMENDEMENT
239
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SCHEDULE 1.2(d)
Trademarks and Patents
NONE
240
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SCHEDULE 1.2(e)
Lease
Previously Delivered.
241
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SCHEDULE 3.2
Seller Consents and Approvals
None.
242
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SCHEDULE 3.6
Litigation
None.
243
<PAGE>
SCHEDULE 4.3
Buyer Consents and Approvals
None.
244
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SCHEDULE 4.4
Governmental Inquiry
None.
245
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EXHIBIT 10.8
Distribution Agreement
THIS AGREEMENT, made and entered into as of this 9TH day of November, 1999, by
and between GoldenAccess.com, Inc. a corporation organized and existing under
the laws of the State of Florida, with offices located at: 1440 J.F. Kennedy
Causeway, #301, North Bay Village, FL 44141 (Hereinafter referred to as the
"Company") and CTI-PRO, s.r.o., a corporation organized and existing under the
laws of the Czech Republic with its principal place of business at U Vystaviste
9/229, 170 00 Praha 7, Czech Republic. (Hereinafter referred to as the
"Distributor"). 1. DISTRIBUTORSHIP Company hereby appoints the Distributor as
its non-exclusive Distributor in the territories of Central and Eastern Europe
for the products and services hereinafter described:
(a) Golden Access.com Internet Telephony Software
(b) Golden Access.com Global Termination Network
(c) The products and services covered by this Agreement are those listed in the
price lists attached as Schedule "A" and "B" by this reference made a part
hereof. The prices to be charged by Company to Distributor for the products and
materials may be changed by Company from time to time. Company reserves the
rights to modify, alter, improve, change or discontinue any and all of the
products and materials covered by this Agreement and this Agreement shall cover
the sale of such products and materials as they may be modified, altered,
improved or changed.
2. VALIDATION
A Purchase by the Distributor of products as listed on attached schedule "A"
shall validate this Agreement.
3. TERMS OF SALE AND PAYMENT
Distributor shall pay Company for the products and
services sold to Distributor by a 25% down payment upon ordering and the
remaining 75% balance Net 30 days from Invoice. The Company shall extend these
payment terms for orders up to a limit of $US 25,000; provided, however, that if
at any time in Company's opinion the financial condition of Distributor so
warrants, Company may alter or suspend any credit terms granted. For orders
above the $US 25,000 limit, the terms of payment shall be cash with order,
C.O.D. or as otherwise determined by the Company. Company further reserves the
right to assess an interest penalty on past due accounts of 1.5% per month on
any outstanding balances, including reasonable attorneys fees incurred in
collection of said past due accounts.
4. RELATIONSHIP OF PARTIES
(a) It is agreed that Distributor is not an agent or representative of Company,
but is solely an independent contractor without the power to bind, act for, or
<PAGE>
obligate Company expressly, implied or in any manner whatsoever. Accordingly,
any resale of the products and materials of the Company by Distributor shall be
in Distributor's name only with no representations concerning Company. However,
Distributor is authorized to represent itself as an authorized Distributor of
Company. All salesmen or other employees used by Distributor shall be and be
deemed to be exclusively Distributor's employees, and the entire management,
direction and control of all such salesmen and employees shall be exclusively
vested in the Distributor. Without limiting the generality of the foregoing,
Distributor shall be exclusively responsible for all social security, state,
federal and foreign taxes, unemployment compensation and workmen's compensation
insurance for all such salesmen or other employees of the Distributor. The
Distributor shall be exclusively responsible for all wages, salaries, traveling
expenses or any other expenses of any kind whatsoever incurred by the
Distributor or by any of its salesmen or other employees. Neither the
Distributor nor anyone associated with the Distributor shall be entitled to
receive any payments from Company by way of compensation, wages, remuneration or
expenses.
(b) Company shall have the sole right to accept or reject all orders submitted
to it for sales to the Distributor, to fix the terms and conditions of sales to
the Distributor on an order by order basis and to approve returns, allowances or
other adjustments with reference to such sales.
(c) Company shall have no liability with respect to alleged defective products
and materials sold by Company except as set forth in Company's warranty at
stated in Clause 6 herein, as part of the terms and conditions of any sale made
by Company, and Distributor shall have no authority to, and shall make no
representation for a warranty with respect to the Company's products and
materials contrary to or inconsistent with Company's warranty.
The Company specifically disclaims all warranties expressed or implied,
including but not limited to, implied warranties of merchantability and fitness
for a particular purpose with respect to defects in the diskette, or other
physical media and documentation, operation of the programs, source code and any
particular application or use of the software or hardware. In no event shall the
Company be liable for any loss of use, interruption of business, or any
indirect, special, incidental, or consequential damages of any kind including
loss of profits regardless of the cause of action including tort liability.
(d) Neither party hereto shall be liable to the other for any failure to perform
its obligations hereunder except for failure to pay, if such failure is due to
fires, floods, strikes by third parties, work stoppages, accidents, wars, acts
of God, Force Majeure, or any other cause beyond the control of the party
failing to perform,
(e) Company reserves the right to sell its products directly to the end user.
<PAGE>
5. RESPONSIBILITIES OF DISTRIBUTOR
(a) Distributor shall use its best efforts to promote the use and sale of
Company products and services to users of the same in the Distributor's primary
area of marketing responsibility.
(b) No order placed by Distributor shall be binding upon the Company until and
unless the Company has acknowledged it in writing.
(c) Distributor, at their discretion, can refer to the Company any of their
customers who wish to purchase an Internet Telephony Gateway direct from the
Company. In the event a Purchase and/or Service Agreement is concluded between
the Company and the referral, the Company agrees to pay the Distributor a
commission of 5% on the value of the sale.
(d) Distributor shall not authorize the return of any product or materials
unless given specific advance written authorization by the Company to do so.
Failure to request product return within 10 days of receipt will connote the
acceptance of the products so sold. (See section 12)
(e) Distributor agrees that all information supplied by Company including, but
not limited to, information pertaining to the conduct or details of Company's
business, its processes, formulae, machines, devices, products and materials,
and list of Company's customers are furnished for Distributor under this
Agreement only and shall be kept in confidence by Distributor. Distributor
further agrees that the Documents containing such information shall not be
duplicated or the information contained therein disclosed to others or used for
manufacturing or any other purpose without the prior written approval of
Company. However, Company agrees that such information maybe disclosed to a user
by Distributor's employees to the extent necessary to reasonably perform under
this Agreement. Upon termination, Distributor agrees to immediately return to
Company all processes, formulae, devices materials etc.
Distributor acknowledges and agrees that the Software licensed hereunder and all
copies thereof constitute valuable trade secrets of Company or proprietary and
confidential information of Company and title thereto remains in Company. All
applicable copyrights, trade secrets, patents and other intellectual and
property rights in the Software and all other items licensed hereunder are and
remain in Company. All other aspects of the Software and all other items
licensed hereunder, including without limitation, programs, methods of
processing, specific design, and structure of individual programs and their
interaction and unique programming techniques employed therein, as well as
screen formats shall remain the sole and exclusive property of Company and shall
not be sold, revealed, disclosed or otherwise communicated, directly or
indirectly by Distributor to any person, company or institution whatsoever other
than for the purposes set forth herein. It is expressly understood that no title
or ownership of the Software or any part thereof is hereby transferred to the
Distributor.
The core product may be stored or installed on a storage device, such as a
network server, used only to install or run the Core product on other computers
over an internal network; however, a license must be acquired and dedicated for
each separate computer on which the core product is installed or run from the
<PAGE>
storage device. A license for the Core product may not be shared or used
concurrently on different computers.
(f) Distributor agrees that it will indemnify and hold harmless the Company, its
officers, agents, servants and employees from and against any loss, cost damage,
claim, expense or liability, including reasonable attorneys fees and costs in
the defense and or prosecution of such actions on the trial and appellate levels
by reason of property damage, personal injury, suit, or other claim against the
Company resulting from or in connection with the actions of Distributor's
officers, agents, servants or employees.
(g) Distributor shall be liable for all costs incurred as a result of its
failure to timely correct erroneous instructions to the Company. Examples of
such erroneous instructions include but are not limited to erroneous information
pertaining to sales orders and telephone or telegraphed instructions.
(h) Distributor agrees not to use the Company' s trademarks or trade names in
any manner except as authorized by Company or in connection with Company's
literature. Distributor agrees to forthwith discontinue such usage upon the
cancellation of this Agreement. (i) Service: the Distributor shall, at his
expense, perform, when needed, conventional field servicing of the products and
materials sold through him. Distributor agrees to use only Company factory
approved plans and procedures or equivalent to repair Company products and
materials and to charge the end user customer for such repairs at reasonable
rates.
(j) The Distributor shall co-operate with Company in the fixing from time to
time, in advance, of a yearly sales quota for sale by the Distributor of the
products included in this Agreement, The Distributor agrees that it will use
sufficient sales efforts to achieve such quotas and to that end, the Distributor
agrees:
(1) to demonstrate such products and materials and such other products and
materials as may hereafter be included in this Agreement to potential
customers,
(2) to follow up promptly any leads within the territory that Company may
refer to him hereunder,
(3) to permit Company's representatives from time to time to address sales
meetings to the Distributor's sales force.
(k) Distributor shall purchase sufficient amounts of Company products,
materials, and parts to enable Distributor to meet demands for users of the same
within its primary areas of marketing responsibility
<PAGE>
6. RESPONSIBILITIES OF THE COMPANY
(a) Company shall provide Distributor with appropriate books, other specimens
and/or exhibits of products and materials, including 2 copies of 4-port NFR (Not
For Resale) demonstration software. Such sample books, specimens and/or exhibits
and/or other paraphernalia for exhibit purposes are the exclusive property of
the Company and Distributor shall fully protect and safeguard them against loss
and/or damage, and said items and/or paraphernalia shall be subject to be used,
disposed of, transferred, and/or handled as directed by Distributor by Company
(b) Company shall from time to time provide Distributor with suggested resale
prices for Company products and materials sold to Distributor hereunder;
provided, however, that nothing in such suggested prices so furnished shall be
such as to obligate Distributor to follow the same in reselling products or
materials purchased by it from Company hereunder.
(c) Warranty: Company warrants for a period of ninety (90) days that the media
containing the product shall be free from defects. The Company does not warrant
that the product will meet the Distributor's requirements or that the product
will operate in the configurations which the Distributor may select to use,
unless previously approved in writing by the Company or that the operation of
the Product will be uninterrupted or error-free, or that all error conditions
will be corrected. In the case of a detected software error, Company will try to
fix it and send a patch or new version to Distributor within a reasonable time.
(d) Change Notices: Company agrees to give Distributor thirty (30) days advance
notice of significant model changes and changes in Company current price lists,
provided. However, that company shall not be liable for failure to notify
Distributor due to inadvertence, accident, or mistake.(e) So long as this
Agreement shall remain in full force and effect, and Distributor has not
defaulted hereunder, Company agrees:
1. To provide to Distributor sales information and advice on a continuing
basis, and to provide such sales leads as may develop from Company's
own advertising and sales promotion.
2. To train personnel designated by Distributor in the operation of the
Golden Access Internet Telephony software as purchased by Distributor
and to further help Distributor in increasing business by providing
information on successful selling techniques, notice of business
practices and policies, technical information relating to the operation
of Golden Access Internet Telephony software as purchased by
Distributor, competitive information, and other such information as may
enhance the opportunities for conducting a profitable business.
3. To provide remote Technical Support, on an as-required basis to the
Distributor only and not their end-users. The Distributor may either
contact the Company by email at [email protected] or by
telephone at +54-351-421-0056 and report the problem. Golden Access
will makes it best effort to respond to the Distributor within the next
available business day to provide further assistance.
<PAGE>
7. DURATION OF AGREEMENT AND TERMINATION
(a) This Agreement shall continue in effect for a period of one (1) year from
the date of its execution, and Distributor has not defaulted hereunder, and
thereafter from year to year unless either party shall give the other thirty
(30) days written notice prior to the end of the initial or any extended term
thereof, of its desire to terminate the Agreement at the expiration of such
term.
(b) In the event that at any time during the duration of this Agreement or any
extension thereof the Distributor is adjudged bankrupt or shall make an
assignment for the benefit of its creditors, or a receiver is appointed for it
or for any of its properties or it is adjudged to be insolvent, the Company
shall have the right, at its election, to cancel this Agreement forthwith by
giving written notice to that effect.
8. USE OF NAME
(a) Upon written notice from Company or upon expiration or termination of this
Agreement, Distributor agrees to promptly discontinue using the
GoldenAccess.com name, logo, or trade name and trademarks.
(b) Distributor shall have no rights, other than those specifically set forth
in this Agreement, to use any trademark, trade name or names or any
contraction, abbreviation or similitude thereof belonging to Company,
without the prior specific approval of Company. Distributor may not
incorporate Golden Access.com name or logo or trade name into company name.
9. WAIVER
The failure of either party hereto to exercise any right hereunder shall not be
deemed to be a waiver of such right, and the failure of either party to cancel
this Agreement for breach or default shall not be deemed to be a waiver of the
right to do so for any subsequent breach.
10. ASSIGNMENT
This Agreement cannot be transferred and/or assigned by the Distributor to any
Third party without the prior written approval of the Company, which approval
may be unreasonably withheld. Any change in ownership or control of the
Distributor can be cause for cancellation.
11. ENTIRE AGREEMENT
This Agreement constitutes the full and complete understanding between
Distributor and Company and no amendments hereof shall be considered binding
and/or effective unless such amendment is effectuated in writing, by mutual
consent, in the form of an addendum to this Agreement. No renewals and/or
extensions of this Agreement or any addendum shall be made except by specific
<PAGE>
written agreement thereof by the parties hereto. If it is necessary to employ an
attorney to enforce any provision of this agreement, Company shall be entitled
to recover reasonable attorney's fees and costs on trial and appellate levels.
12. RETURN OF MERCHANDISE
Should an error occur due to Company personnel's misinterpretation, entering,
filling or shipping of a Distributor order, the merchandise is returnable by
Distributor for full replacement, providing the merchandise is in good
condition, and Company will accept the return transportation charge, if the
error is reported within 10 business days. Where the Distributor desires to
return merchandise for any reason other than Company errors in filling orders,
the merchandise must be in (a) In original containers, (b) saleable according to
Company standards, and (c) must be authorized for return by Company prior to
issuance of any allowable credits.
1. When Distributor requests the return of merchandise within 30 days after
the receipt of shipment and such return is authorized, Company will allow
100% of the invoice value in the form of a credit memorandum after
Company's receipt of the returned goods.
2. When Distributor requests the return of merchandise from 30 - 90 days after
the receipt of shipment and such return is authorized, Company will allow
80% of the invoice value in the form of a credit memorandum after Company's
receipt of the returned goods.
3. Transportation charges applicable to merchandise authorized for return must
be pre-paid by the Distributor.
4. Merchandise in the Distributor's possession longer than 90 days is not
returnable.
13. DAMAGED SHIPMENTS AND CLAIMS
In the Event that equipment or supplies are received in damaged condition, the
following procedure shall be used.
1. Distributor shall not repack the merchandise or attempt to return it to the
Company.
2. Distributor shall immediately notify the carrier and ask that an inspection
of the damage be made.
3. Distributor shall notify Company of the receipt of damaged shipment, giving
particulars of the damage so that Company will know which items are to be
replaced.
4. Distributor shall file claim for the damage after the inspection report has
been received from the carrier. 5. Company will advise Distributor what
disposition is to be made of the damaged articles.
14. TAXES
Distributor shall pay any and all applicable sales, use or excise taxes, or
amounts legally levied in lieu thereof imposed under the authority of a federal,
state or local taxing jurisdiction, so long as they are billed as a separate
item on each invoice, or Distributor shall furnish Company with appropriate
exemption certificates.
<PAGE>
15. NOTICES
Any notice to be given hereunder shall be in writing and shall be sent by
registered or certified mail postage prepaid to the party to be notified,
addressed to such party at it's address appearing herein or such other address
as such party may by written notice have substituted therefore and the
depositing of such notice in the mail, so addressed, shall constitute the giving
thereof.
Distributor Notification Address:
CTI-PRO, s.r.o.
U Vystaviste 9/229
170 00 Praha 7
Czech Republic
Company Notification Address:
Golden Access.com, Inc.
6161 Blue Lagoon Drive, Suite 190
Miami, Florida,
33126, USA
16. APPLICABLE LAW
This Agreement shall be interpreted and governed in accordance with the laws of
the State of Florida, venue to be Dade County, Florida, United States of
America.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by a duly authorized officer and have caused their seals to be affixed hereto on
the date first written above.
(Attest) (Witness) Company: GoldenAccess.com, Inc
(Seal) _______________________________ (Seal) ____________________________
(By) ________________________________ (By) Paul Callihoo
Print name.
(Title)_______________________________ (Title) VP, Business Development
(Attest) (Witness) Distributor:
(Seal) _______________________________ (Seal) _____________________________
(By) ________________________________ (By)
Print name.
(Title)_______________________________ (Title)
SCHEDULE A
Notes:
- - Price segments are on a "per system" basis.
- - For systems upgrades, the applicable price is that of the segment of
the final number of lines.
EXHIBIT 10.10
PARTNER PROGRAM WITH DIALOGIC
246
<PAGE>
Certificate of Membership
Golden Access Group, Inc.
This is to certify that you are a member
of the Dialogic Co-Marketing Program,
at the Partner level.
247
<PAGE>
EXHIBIT 10.14
Distribution Agreement
THIS AGREEMENT, made and entered into as of this 10TH day of November, 1999, by
and between GoldenAccess.com, Inc. a corporation organized and existing under
the laws of the State of Florida, with offices located at: 1440 J.F. Kennedy
Causeway, #301, North Bay Village, FL 44141 (Hereinafter referred to as the
"Company") and PL Data Teknik A/S, a corporation organized and existing under
the laws of Denmark with its principal place of business at Kirke Vaerlosevej
24, 1 DK-3500 Vaerlose, Denmark. (Hereinafter referred to as the "Distributor").
1. DISTRIBUTORSHIP
Company hereby appoints the Distributor as its non-exclusive Distributor in the
territory of Denmark for the products and services hereinafter described:
(a) Golden Access.com Internet Telephony Software
(b) Golden Access.com Global Termination Network
(c) The products and services covered by this Agreement are those listed in the
price lists attached as Schedule "A" and "B" by this reference made a part
hereof. The prices to be charged by Company to Distributor for the products and
materials may be changed by Company from time to time. Company reserves the
rights to modify, alter, improve, change or discontinue any and all of the
products and materials covered by this Agreement and this Agreement shall cover
the sale of such products and materials as they may be modified, altered,
improved or changed.
2. VALIDATION
A Purchase by the Distributor of products as listed on attached schedule "A"
shall validate this Agreement.
3. TERMS OF SALE AND PAYMENT
Distributor shall pay Company for the products and
services sold to Distributor by a 25% down payment upon ordering and the
remaining 75% balance Net 30 days from Invoice. The Company shall extend these
payment terms for orders up to a limit of $US 25,000; provided, however, that if
at any time in Company's opinion the financial condition of Distributor so
warrants, Company may alter or suspend any credit terms granted. For orders
above the $US 25,000 limit, the terms of payment shall be cash with order,
C.O.D. or as otherwise determined by the Company. Company further reserves the
right to assess an interest penalty on past due accounts of 1.5% per month on
any outstanding balances, including reasonable attorneys fees incurred in
collection of said past due accounts.
<PAGE>
4. RELATIONSHIP OF PARTIES
(a) It is agreed that Distributor is not an agent or representative of Company,
but is solely an independent contractor without the power to bind, act for, or
obligate Company expressly, implied or in any manner whatsoever. Accordingly,
any resale of the products and materials of the Company by Distributor shall be
in Distributor's name only with no representations concerning Company. However,
Distributor is authorized to represent itself as an authorized Distributor of
Company. All salesmen or other employees used by Distributor shall be and be
deemed to be exclusively Distributor's employees, and the entire management,
direction and control of all such salesmen and employees shall be exclusively
vested in the Distributor. Without limiting the generality of the foregoing,
Distributor shall be exclusively responsible for all social security, state,
federal and foreign taxes, unemployment compensation and workmen's compensation
insurance for all such salesmen or other employees of the Distributor. The
Distributor shall be exclusively responsible for all wages, salaries, traveling
expenses or any other expenses of any kind whatsoever incurred by the
Distributor or by any of its salesmen or other employees. Neither the
Distributor nor anyone associated with the Distributor shall be entitled to
receive any payments from Company by way of compensation, wages, remuneration or
expenses.
(b) Company shall have the sole right to accept or reject all orders submitted
to it for sales to the Distributor, to fix the terms and conditions of sales to
the Distributor on an order by order basis and to approve returns, allowances or
other adjustments with reference to such sales.
(c) Company shall have no liability with respect to alleged defective products
and materials sold by Company except as set forth in Company's warranty at
stated in Clause 6 herein, as part of the terms and conditions of any sale made
by Company, and Distributor shall have no authority to, and shall make no
representation for a warranty with respect to the Company's products and
materials contrary to or inconsistent with Company's warranty.
The Company specifically disclaims all warranties expressed or implied,
including but not limited to, implied warranties of merchantability and fitness
for a particular purpose with respect to defects in the diskette, or other
physical media and documentation, operation of the programs, source code and any
particular application or use of the software or hardware. In no event shall the
Company be liable for any loss of use, interruption of business, or any
indirect, special, incidental, or consequential damages of any kind including
loss of profits regardless of the cause of action including tort liability.
(d) Neither party hereto shall be liable to the other for any failure to perform
its obligations hereunder except for failure to pay, if such failure is due to
fires, floods, strikes by third parties, work stoppages, accidents, wars, acts
of God, Force Majeure, or any other cause beyond the control of the party
failing to perform,
(e) Company reserves the right to sell its products directly to the end user.
<PAGE>
5. RESPONSIBILITIES OF DISTRIBUTOR
(a) Distributor shall use its best efforts to promote the use and sale of
Company products and services to users of the same in the Distributor's primary
area of marketing responsibility.
(b) No order placed by Distributor shall be binding upon the Company until and
unless the Company has acknowledged it in writing.
(c) Distributor, at their discretion, can refer to the Company any of their
customers who wish to purchase an Internet Telephony Gateway direct from the
Company. In the event a Purchase and/or Service Agreement is concluded between
the Company and the referral, the Company agrees to pay the Distributor a
commission of 5% on the value of the sale.
(d) Distributor shall not authorize the return of any product or materials
unless given specific advance written authorization by the Company to do so.
Failure to request product return within 10 days of receipt will connote the
acceptance of the products so sold. (See section 12)
(e) Distributor agrees that all information supplied by Company including, but
not limited to, information pertaining to the conduct or details of Company's
business, its processes, formulae, machines, devices, products and materials,
and list of Company's customers are furnished for Distributor under this
Agreement only and shall be kept in confidence by Distributor. Distributor
further agrees that the Documents containing such information shall not be
duplicated or the information contained therein disclosed to others or used for
manufacturing or any other purpose without the prior written approval of
Company. However, Company agrees that such information maybe disclosed to a user
by Distributor's employees to the extent necessary to reasonably perform under
this Agreement. Upon termination, Distributor agrees to immediately return to
Company all processes, formulae, devices materials etc.
Distributor acknowledges and agrees that the Software licensed hereunder and all
copies thereof constitute valuable trade secrets of Company or proprietary and
confidential information of Company and title thereto remains in Company. All
applicable copyrights, trade secrets, patents and other intellectual and
property rights in the Software and all other items licensed hereunder are and
remain in Company. All other aspects of the Software and all other items
licensed hereunder, including without limitation, programs, methods of
processing, specific design, and structure of individual programs and their
interaction and unique programming techniques employed therein, as well as
screen formats shall remain the sole and exclusive property of Company and shall
not be sold, revealed, disclosed or otherwise communicated, directly or
indirectly by Distributor to any person, company or institution whatsoever other
than for the purposes set forth herein. It is expressly understood that no title
or ownership of the Software or any part thereof is hereby transferred to the
Distributor.
The core product may be stored or installed on a storage device, such as a
network server, used only to install or run the Core product on other computers
over an internal network; however, a license must be acquired and dedicated for
each separate computer on which the core product is installed or run from the
storage device. A license for the Core product may not be shared or used
concurrently on different computers.
<PAGE>
(f) Distributor agrees that it will indemnify and hold harmless the Company, its
officers, agents, servants and employees from and against any loss, cost damage,
claim, expense or liability, including reasonable attorneys fees and costs in
the defense and or prosecution of such actions on the trial and appellate levels
by reason of property damage, personal injury, suit, or other claim against the
Company resulting from or in connection with the actions of Distributor's
officers, agents, servants or employees.
(g) Distributor shall be liable for all costs incurred as a result of its
failure to timely correct erroneous instructions to the Company. Examples of
such erroneous instructions include but are not limited to erroneous information
pertaining to sales orders and telephone or telegraphed instructions.
(h) Distributor agrees not to use the Company' s trademarks or trade names in
any manner except as authorized by Company or in connection with Company's
literature. Distributor agrees to forthwith discontinue such usage upon the
cancellation of this Agreement.
(i) Service: the Distributor shall, at his expense, perform, when needed,
conventional field servicing of the products and materials sold through him.
Distributor agrees to use only Company factory approved plans and procedures or
equivalent to repair Company products and materials and to charge the end user
customer for such repairs at reasonable rates.
(j) The Distributor shall co-operate with Company in the fixing from time to
time, in advance, of a yearly sales quota for sale by the Distributor of the
products included in this Agreement, The Distributor agrees that it will use
sufficient sales efforts to achieve such quotas and to that end, the Distributor
agrees:
(1) to demonstrate such products and materials and such other products and
materials as may hereafter be included in this Agreement to potential customers,
(2) to follow up promptly any leads within the territory that Company may refer
to him hereunder, (3) to permit Company's representatives from time to time to
address sales meetings to the Distributor's sales force.
(k) Distributor shall purchase sufficient amounts of Company products,
materials, and parts to enable Distributor to meet demands for users of the same
within its primary areas of marketing responsibility
<PAGE>
6. RESPONSIBILITIES OF THE COMPANY
(a) Company shall provide Distributor with appropriate books, other specimens
and/or exhibits of products and materials, including 2 copies of 4-port NFR (Not
For Resale) demonstration software. Such sample books, specimens and/or exhibits
and/or other paraphernalia for exhibit purposes are the exclusive property of
the Company and Distributor shall fully protect and safeguard them against loss
and/or damage, and said items and/or paraphernalia shall be subject to be used,
disposed of, transferred, and/or handled as directed by Distributor by Company
(b) Company shall from time to time provide Distributor with suggested resale
prices for Company products and materials sold to Distributor hereunder;
provided, however, that nothing in such suggested prices so furnished shall be
such as to obligate Distributor to follow the same in reselling products or
materials purchased by it from Company hereunder.
(c) Warranty: Company warrants for a period of ninety (90) days that the media
containing the product shall be free from defects. The Company does not warrant
that the product will meet the Distributor's requirements or that the product
will operate in the configurations which the Distributor may select to use,
unless previously approved in writing by the Company or that the operation of
the Product will be uninterrupted or error-free, or that all error conditions
will be corrected. In the case of a detected software error, Company will try to
fix it and send a patch or new version to Distributor within a reasonable time.
(d) Change Notices: Company agrees to give Distributor thirty (30) days advance
notice of significant model changes and changes in Company current price lists,
provided. However, that company shall not be liable for failure to notify
Distributor due to inadvertence, accident, or mistake.
(e) So long as this Agreement shall remain in full force and effect, and
Distributor has not defaulted hereunder, Company agrees:
1. To provide to Distributor sales information and advice on a continuing
basis, and to provide such sales leads as may develop from Company's
own advertising and sales promotion.
2. To train personnel designated by Distributor in the operation of the
Golden Access Internet Telephony software as purchased by Distributor
and to further help Distributor in increasing business by providing
information on successful selling techniques, notice of business
practices and policies, technical information relating to the operation
of Golden Access Internet Telephony software as purchased by
Distributor, competitive information, and other such information as may
enhance the opportunities for conducting a profitable business.
3. To provide remote Technical Support, on an as-required basis to the
Distributor only and not their end-users. The Distributor may either
contact the Company by email at [email protected] or by
telephone at +54-351-421-0056 and report the problem. Golden Access
will makes it best effort to respond to the Distributor within the next
available business day to provide further assistance.
7. DURATION OF AGREEMENT AND TERMINATION
(a) This Agreement shall continue in effect for a period of one (1) year from
the date of its execution, and Distributor has not defaulted hereunder, and
thereafter from year to year unless either party shall give the other thirty
(30) days written notice prior to the end of the initial or any extended term
thereof, of its desire to terminate the Agreement at the expiration of such
term.
(b) In the event that at any time during the duration of this Agreement or any
extension thereof the Distributor is adjudged bankrupt or shall make an
assignment for the benefit of its creditors, or a receiver is appointed for it
or for any of its properties or it is adjudged to be insolvent, the Company
shall have the right, at its election, to cancel this Agreement forthwith by
giving written notice to that effect.
8. USE OF NAME
(a) Upon written notice from Company or upon expiration or termination of this
Agreement, Distributor agrees to promptly discontinue using the
GoldenAccess.com name, logo, or trade name and trademarks.
(b) Distributor shall have no rights, other than those specifically set forth
in this Agreement, to use any trademark, trade name or names or any
contraction, abbreviation or similitude thereof belonging to Company,
without the prior specific approval of Company. Distributor may not
incorporate Golden Access.com name or logo or trade name into company name.
9. WAIVER
The failure of either party hereto to exercise any right hereunder shall not be
deemed to be a waiver of such right, and the failure of either party to cancel
this Agreement for breach or default shall not be deemed to be a waiver of the
right to do so for any subsequent breach.
10. ASSIGNMENT
This Agreement cannot be transferred and/or assigned by the Distributor to any
Third party without the prior written approval of the Company, which approval
may be unreasonably withheld. Any change in ownership or control of the
Distributor can be cause for cancellation.
11. ENTIRE AGREEMENT
This Agreement constitutes the full and complete understanding between
Distributor and Company and no amendments hereof shall be considered binding
and/or effective unless such amendment is effectuated in writing, by mutual
consent, in the form of an addendum to this Agreement. No renewals and/or
extensions of this Agreement or any addendum shall be made except by specific
written agreement thereof by the parties hereto. If it is necessary to employ an
attorney to enforce any provision of this agreement, Company shall be entitled
to recover reasonable attorney's fees and costs on trial and appellate levels.
<PAGE>
12. RETURN OF MERCHANDISE
Should an error occur due to Company personnel's misinterpretation, entering,
filling or shipping of a Distributor order, the merchandise is returnable by
Distributor for full replacement, providing the merchandise is in good
condition, and Company will accept the return transportation charge, if the
error is reported within 10 business days. Where the Distributor desires to
return merchandise for any reason other than Company errors in filling orders,
the merchandise must be in (a) In original containers, (b) saleable according to
Company standards, and (c) must be authorized for return by Company prior to
issuance of any allowable credits.
1. When Distributor requests the return of merchandise within 30 days
after the receipt of shipment and such return is authorized, Company
will allow 100% of the invoice value in the form of a credit memorandum
after Company's receipt of the returned goods.
2. When Distributor requests the return of merchandise from 30 - 90 days
after the receipt of shipment and such return is authorized, Company
will allow 80% of the invoice value in the form of a credit memorandum
after Company's receipt of the returned goods.
3. Transportation charges applicable to merchandise authorized for return
must be pre-paid by the Distributor.
4. Merchandise in the Distributor's possession longer than 90 days is not
returnable.
13. DAMAGED SHIPMENTS AND CLAIMS
In the Event that equipment or supplies are received in damaged condition, the
following procedure shall be used.
1. Distributor shall not repack the merchandise or attempt to return it to the
Company.
2. Distributor shall immediately notify the carrier and ask that an inspection
of the damage be made.
3. Distributor shall notify Company of the receipt of damaged shipment, giving
particulars of the damage so that Company will know which items are to be
replaced.
4. Distributor shall file claim for the damage after the inspection report has
been received from the carrier.
5. Company will advise Distributor what disposition is to be made of the
damaged articles.
14. TAXES
Distributor shall pay any and all applicable sales, use or excise taxes, or
amounts legally levied in lieu thereof imposed under the authority of a federal,
state or local taxing jurisdiction, so long as they are billed as a separate
item on each invoice, or Distributor shall furnish Company with appropriate
exemption certificates.
<PAGE>
15. NOTICES
Any notice to be given hereunder shall be in writing and shall be sent by
registered or certified mail postage prepaid to the party to be notified,
addressed to such party at it's address appearing herein or such other address
as such party may by written notice have substituted therefore and the
depositing of such notice in the mail, so addressed, shall constitute the giving
thereof.
Distributor Notification Address:
PL Data Teknik A/S
Kirke Vaerlosevej 24,1
DK-3500 Vaerlose
Denmark
Company Notification Address:
Golden Access.com, Inc.
6161 Blue Lagoon Drive, Suite 190
Miami, Florida,
33126, USA
16. APPLICABLE LAW
This Agreement shall be interpreted and governed in accordance with the laws of
the State of Florida, venue to be Dade County, Florida, United States of
America.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by a duly authorized officer and have caused their seals to be affixed hereto on
the date first written above.
(Attest) (Witness) Company: GoldenAccess.com, Inc
(Seal) _______________________________ (Seal) ____________________________
(By) ________________________________ (By) Paul Callihoo
Print name.
(Title)_______________________________ (Title) VP, Business Development
(Attest) (Witness) Distributor:
(Seal) _______________________________ (Seal) ____________________________
(By) ________________________________ (By)
Print name.
(Title)_______________________________ (Title)
SCHEDULE A
Notes:
- - Price segments are on a "per system" basis.
- - For systems upgrades, the applicable price is that of the segment of
the final number of lines.
EXHIBIT 10.15
Distribution Agreement
THIS AGREEMENT, made and entered into as of this 18TH day of October, 1999,
by and between GoldenAccess.com, a corporation organized and existing under the
laws of the State of Florida, with offices located at: 1440 J.F. Kennedy
Causeway, #301, North Bay Village, FL 44141 (Hereinafter referred to as the
"Company") and Integrated Communications Group, a corporation organized and
existing under the laws of the Hong Kong with its principal place of business
at: 180 Electric Road, North Point, Hong Kong (Hereinafter referred to as the
"Distributor").
1. DISTRIBUTORSHIP
Company hereby appoints the Distributor as its non-exclusive Distributor in the
territories of Hong Kong, China, Thailand, Singapore and Taiwan for the products
and services hereinafter described:
(a) Golden Access.com Internet Telephony Software
(b) Golden Access.com Global Termination Network
(c) The products and services covered by this Agreement are those listed in the
price lists attached as Schedule "A" and "B" by this reference made a part
hereof. The prices to be charged by Company to Distributor for the products and
materials may be changed by Company from time to time. Company reserves the
rights to modify, alter, improve, change or discontinue any and all of the
products and materials covered by this Agreement and this Agreement shall cover
the sale of such products and materials as they may be modified, altered,
improved or changed.
2. VALIDATION
A Purchase by the Distributor of products as listed on attached schedule "A"
shall validate this Agreement.
3. TERMS OF SALE AND PAYMENTDistributor shall pay Company for the products and
services sold to Distributor by a 25% down payment upon ordering and the
remaining 75% balance Net 30 days from Invoice. The Company shall extend these
payment terms for orders up to a limit of $US 25,000; provided, however, that if
at any time in Company's opinion the financial condition of Distributor so
warrants, Company may alter or suspend any credit terms granted. For orders
above the $US 25,000 limit, the terms of payment shall be cash with order,
C.O.D. or as otherwise determined by the Company. Company further reserves the
right to assess an interest penalty on past due accounts of 1.5% per month on
any outstanding balances, including reasonable attorneys fees incurred in
collection of said past due accounts.
4. RELATIONSHIP OF PARTIES
(a) It is agreed that Distributor is not an agent or representative of Company,
but is solely an independent contractor without the power to bind, act for, or
obligate Company expressly, implied or in any manner whatsoever. Accordingly,
<PAGE>
any resale of the products and materials of the Company by Distributor shall be
in Distributor's name only with no representations concerning Company. However,
Distributor is authorized to represent itself as an authorized Distributor of
Company. All salesmen or other employees used by Distributor shall be and be
deemed to be exclusively Distributor's employees, and the entire management,
direction and control of all such salesmen and employees shall be exclusively
vested in the Distributor. Without limiting the generality of the foregoing,
Distributor shall be exclusively responsible for all social security, state,
federal and foreign taxes, unemployment compensation and workmen's compensation
insurance for all such salesmen or other employees of the Distributor. The
Distributor shall be exclusively responsible for all wages, salaries, traveling
expenses or any other expenses of any kind whatsoever incurred by the
Distributor or by any of its salesmen or other employees. Neither the
Distributor nor anyone associated with the Distributor shall be entitled to
receive any payments from Company by way of compensation, wages, remuneration or
expenses.
(b) Company shall have the sole right to accept or reject all orders submitted
to it for sales to the Distributor, to fix the terms and conditions of sales to
the Distributor on an order by order basis and to approve returns, allowances or
other adjustments with reference to such sales.
(c) Company shall have no liability with respect to alleged defective products
and materials sold by Company except as set forth in Company's warranty at
stated in Clause 6 herein, as part of the terms and conditions of any sale made
by Company, and Distributor shall have no authority to, and shall make nor
epresentation for a warranty with respect to the Company's products and
materials contrary to or inconsistent with Company's warranty.
The Company specifically disclaims all warranties expressed or implied,
including but not limited to, implied warranties of merchantability and fitness
for a particular purpose with respect to defects in the diskette, or other
physical media and documentation, operation of the programs, source code and any
particular application or use of the software or hardware. In no event shall the
Company be liable for any loss of use, interruption of business, or any
indirect, special, incidental, or consequential damages of any kind including
loss of profits regardless of the cause of action including tort liability.
(d) Neither party hereto shall be liable to the other for any failure to perform
its obligations hereunder except for failure to pay, if such failure is due to
fires, floods, strikes by third parties, work stoppages, accidents, wars, acts
of God, force majeure, or any other cause beyond the control of the party
failing to perform,
(e) Company reserves the right to sell its products directly to the end user.
<PAGE>
5. RESPONSIBILITIES OF DISTRIBUTOR
(a) Distributor shall use its best efforts to promote the use and sale of
Company products and services to users of the same in the Distributor's primary
area of marketing responsibility.
(b) No order placed by Distributor shall be binding upon the Company until and
unless the Company has acknowledged it in writing.
(c) Distributor, at their discretion, can refer to the Company any of their
customers who wish to purchase an Internet Telephony Gateway direct from the
Company. In the event a Purchase and/or Service Agreement is concluded between
the Company and the referral, the Company agrees to pay the Distributor a
commission of 5% on the value of the sale.
(d) Distributor shall not authorize the return of any product or materials
unless given specific advance written authorization by the Company to do so.
Failure to request product return within 10 days of receipt will connote the
acceptance of the products so sold. (See section 12)
(e) Distributor agrees that all information supplied by Company including, but
not limited to, information pertaining to the conduct or details of Company's
business, its processes, formulae, machines, devices, products and materials,
and list of Company's customers are furnished for Distributor under this
Agreement only and shall be kept in confidence by Distributor. Distributor
further agrees that the Documents containing such information shall not be
duplicated or the information contained therein disclosed to others or used for
manufacturing or any other purpose without the prior written approval of
Company. However, Company agrees that such information maybe disclosed to a user
by Distributor's employees to the extent necessary to reasonably perform under
this Agreement. Upon termination, Distributor agrees to immediately return to
Company all processes, formulae, devices materials etc.
Distributor acknowledges and agrees that the Software licensed hereunder and all
copies thereof constitute valuable trade secrets of Company or proprietary and
confidential information of Company and title thereto remains in Company. All
applicable copyrights, trade secrets, patents and other intellectual and
property rights in the Software and all other items licensed hereunder are and
remain in Company. All other aspects of the Software and all other items
licensed hereunder, including without limitation, programs, methods of
processing, specific design, and structure of individual programs and their
interaction and unique programming techniques employed therein, as well as
screen formats shall remain the sole and exclusive property of Company and shall
not be sold, revealed, disclosed or otherwise communicated, directly or
indirectly by Distributor to any person, company or institution whatsoever other
than for the purposes set forth herein. It is expressly understood that no title
or ownership of the Software or any part thereof is hereby transferred to the
Distributor.
The core product may be stored or installed on a storage device, such as a
network server, used only to install or run the Core product on other computers
over an internal network; however, a license must be acquired and dedicated for
each separate computer on which the core product is installed or run from the
storage device. A license for the Core product may not be shared or used
concurrently on different computers.
<PAGE>
(f) Distributor agrees that it will indemnify and hold harmless the Company, its
officers, agents, servants and employees from and against any loss, cost damage,
claim, expense or liability, including reasonable attorneys fees and costs in
the defense and or prosecution of such actions on the trial and appellate levels
by reason of property damage, personal injury, suit, or other claim against the
Company resulting from or in connection with the actions of Distributor's
officers, agents, servants or employees.
(g) Distributor shall be liable for all costs incurred as a result of its
failure to timely correct erroneous instructions to the Company. Examples of
such erroneous instructions include but are not limited to erroneous information
pertaining to sales orders and telephone or telegraphed instructions.
(h) Distributor agrees not to use the Company' s trademarks or trade names in
any manner except as authorized by Company or in connection with Company's
literature. Distributor agrees to forthwith discontinue such usage upon the
cancellation of this Agreement.
(i) Service: the Distributor shall, at his expense, perform, when needed,
conventional field servicing of the products and materials sold through him.
Distributor agrees to use only Company factory approved plans and procedures or
equivalent to repair Company products and materials and to charge the end user
customer for such repairs at reasonable rates.
(j) The Distributor shall co-operate with Company in the fixing from time to
time, in advance, of a yearly sales quota for sale by the Distributor of the
products included in this Agreement, The Distributor agrees that it will use
sufficient sales efforts to achieve such quotas and to that end, the Distributor
agrees:
(1) to demonstrate such products and materials and such other products and
materials as may hereafter be included in this Agreement to potential customers,
(2) to follow up promptly any leads within the territory that Company may refer
to him hereunder, (3) to permit Company's representatives from time to time to
address sales meetings to the Distributor's sales force.
(k) Distributor shall purchase sufficient amounts of Company products,
materials, and parts to enable Distributor to meet demands for users of the same
within its primary areas of marketing responsibility
<PAGE>
6. RESPONSIBILITIES OF THE COMPANY
(a) Company shall provide Distributor with appropriate books, other specimens
and/or exhibits of products and materials, including 2 copies of 4-port NFR (Not
For Resale) demonstration software. Such sample books, specimens and/or exhibits
and/or other paraphernalia for exhibit purposes are the exclusive property of
the Company and Distributor shall fully protect and safeguard them against loss
and/or damage, and said items and/or paraphernalia shall be subject to be used,
disposed of, transferred, and/or handled as directed by Distributor by Company
(b) Company shall from time to time provide Distributor with suggested resale
prices for Company products and materials sold to Distributor hereunder;
provided, however, that nothing in such suggested prices so furnished shall be
such as to obligate Distributor to follow the same in reselling products or
materials purchased by it from Company hereunder.
(c) Warranty: Company warrants for a period of ninety (90) days that the media
containing the product shall be free from defects. The Company does not warrant
that the product will meet the Distributor's requirements or that the product
will operate in the configurations which the Distributor may select to use,
unless previously approved in writing by the Company or that the operation of
the Product will be uninterrupted or error-free, or that all error conditions
will be corrected. In the case of a detected software error, Company will try to
fix it and send a patch or new version to Distributor within a reasonable time.
(d) Change Notices: Company agrees to give Distributor thirty (30) days advance
notice of significant model changes and changes in Company current price lists,
provided. However, that company shall not be liable for failure to notify
Distributor due to inadvertence, accident, or mistake.(e) So long as this
Agreement shall remain in full force and effect, and Distributor has not
defaulted hereunder, Company agrees:
1. To provide to Distributor sales information and advice on a continuing
basis, and to provide such sales leads as may develop from Company's
own advertising and sales promotion.
2. To train personnel designated by Distributor in the operation of the
Golden Access Internet Telephony software as purchased by Distributor
and to further help Distributor in increasing business by providing
information on successful selling techniques, notice of business
practices and policies, technical information relating to the operation
of Golden Access Internet Telephony software as purchased by
Distributor, competitive information, and other such information as may
enhance the opportunities for conducting a profitable business.
3. To provide remote Technical Support, on an as-required basis to the
Distributor only and not their end-users. The Distributor may either
contact the Company by email at [email protected] or by
telephone at +54-351-421-0056 and report the problem. Golden Access
will makes it best effort to respond to the Distributor within the next
available business day to provide further assistance.
<PAGE>
7. DURATION OF AGREEMENT AND TERMINATION
(a) This Agreement shall continue in effect for a period of one (1) year from
the date of its execution, and Distributor has not defaulted hereunder, and
thereafter from year to year unless either party shall give the other thirty
(30) days written notice prior to the end of the initial or any extended term
thereof, of its desire to terminate the Agreement at the expiration of such
term.
(b) In the event that at any time during the duration of this Agreement or any
extension thereof the Distributor is adjudged bankrupt or shall make an
assignment for the benefit of its creditors, or a receiver is appointed for it
or for any of its properties or it is adjudged to be insolvent, the Company
shall have the right, at its election, to cancel this Agreement forthwith by
giving written notice to that effect.
8. USE OF NAME
(a) Upon written notice from Company or upon expiration or termination of this
Agreement, Distributor agrees to promptly discontinue using the Golden
Access Group name, logo, or trade name and trademarks.
(b) Distributor shall have no rights, other than those specifically set forth
in this Agreement, to use any trademark, trade name or names or any
contraction, abbreviation or similitude thereof belonging to Company,
without the prior specific approval of Company. Distributor may not
incorporate Golden Access Group name or logo or trade name into company
name.
9. WAIVER
The failure of either party hereto to exercise any right hereunder shall not be
deemed to be a waiver of such right, and the failure of either party to cancel
this Agreement for breach or default shall not be deemed to be a waiver of the
right to do so for any subsequent breach.
10. ASSIGNMENT
This Agreement cannot be transferred and/or assigned by the Distributor to any
Third party without the prior written approval of the Company, which approval
may be unreasonably withheld. Any change in ownership or control of the
Distributor can be cause for cancellation.
11. ENTIRE AGREEMENT
This Agreement constitutes the full and complete understanding between
Distributor and Company and no amendments hereof shall be considered binding
and/or effective unless such amendment is effectuated in writing, by mutual
consent, in the form of an addendum to this Agreement. No renewals and/or
extensions of this Agreement or any addendum shall be made except by specific
written agreement thereof by the parties hereto. If it is necessary to employ an
attorney to enforce any provision of this agreement, Company shall be entitled
to recover reasonable attorney's fees and costs on trial and appellate levels.
<PAGE>
12. RETURN OF MERCHANDISE
Should an error occur due to Company personnel's misinterpretation, entering,
filling or shipping of a Distributor order, the merchandise is returnable by
Distributor for full replacement, providing the merchandise is in good
condition, and Company will accept the return transportation charge, if the
error is reported within 10 business days. Where the Distributor desires to
return merchandise for any reason other than Company errors in filling orders,
the merchandise must be in (a) In original containers, (b) saleable according to
Company standards, and (c) must be authorized for return by Company prior to
issuance of any allowable credits.
1. When Distributor requests the return of merchandise within 30 days after
the receipt of shipment and such return is authorized, Company will allow
100% of the invoice value in the form of a credit memorandum after
Company's receipt of the returned goods.
2. When Distributor requests the return of merchandise from 30 - 90 days after
the receipt of shipment and such return is authorized, Company will allow
80% of the invoice value in the form of a credit memorandum after Company's
receipt of the returned goods.
3. Transportation charges applicable to merchandise authorized for return must
be pre-paid by the Distributor.
4. Merchandise in the Distributor's possession longer than 90 days is not
returnable.
13. DAMAGED SHIPMENTS AND CLAIMS
In the Event that equipment or supplies are received in damaged condition, the
following procedure shall be used.
1. Distributor shall not repack the merchandise or attempt to return it to the
Company.
2. Distributor shall immediately notify the carrier and ask that an inspection
of the damage be made.
3. Distributor shall notify Company of the receipt of damaged shipment, giving
particulars of the damage so that Company will know which items are to be
replaced.
4. Distributor shall file claim for the damage after the inspection report has
been received from the carrier. 5. Company will advise Distributor what
disposition is to be made of the damaged articles.
14. TAXES
Distributor shall pay any and all applicable sales, use or excise taxes, or
amounts legally levied in lieu thereof imposed under the authority of a federal,
state or local taxing jurisdiction, so long as they are billed as a separate
item on each invoice, or Distributor shall furnish Company with appropriate
exemption certificates.
<PAGE>
15. NOTICES
Any notice to be given hereunder shall be in writing and shall be sent by
registered or certified mail postage prepaid to the party to be notified,
addressed to such party at it's address appearing herein or such other address
as such party may by written notice have substituted therefore and the
depositing of such notice in the mail, so addressed, shall constitute the giving
thereof.
Distributor Notification Address:
Integrated Communications Group
180 Electric Road, 8th Floor, AT Tower
North Point, Hong Kong
Company Notification Address:
Golden Access.com
1865 Brickell Avenue A-1609
Miami, Florida,
33129, USA
16. APPLICABLE LAW
This Agreement shall be interpreted and governed in accordance with the laws of
the State of Florida, venue to be Dade County, Florida, United States of
America.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by a duly authorized officer and have caused their seals to be affixed hereto on
the date first written above.
(Attest) (Witness) Company: Golden Access.com
(Seal) _______________________________ (Seal) ____________________________
(By) ________________________________ (By) Paul Callihoo
Print name.
(Title)_______________________________ (Title) VP, Business Development
(Attest) (Witness) Distributor:
(Seal) _______________________________ (Seal) ____________________________
(By) ________________________________ (By) William Hui
Print name.
(Title)_______________________________ (Title) General Manager
SCHEDULE A
Notes:
- - Price segments are on a "per system" basis.
- - For systems upgrades, the applicable price is that of the segment of
the final number of lines.
EXHIBIT 20.1
STATE OF FLORIDA MERGER FILINGS
248
<PAGE>
FLORIDA DEPARTMENT OF STATE
Katherine Harris
Secretary of State
September 13, 1999
GARY APPELBLATT
3610 AMERICAN RIVER DRIVE, SUITE 112
SACRAMENTO, CA 95864
Re: Document Number P99000074437
The Articles of Merger were filed August 30, 1999, for CATHTECH GROUP, INC.
which changed its name to GOLDENACCESS.COM, INC., the surviving Florida entity.
Should you have any further questions concerning this matter, please feel free
to call(850) 487-6050, the Amendment Filing Section.
Carol Mustain
Corporate Specialist
Division of Corporations Letter Number: 999A00045058
Division of Corporation - P.O. Box 6327 - Tallahassee, Florida 32314
249
<PAGE>
LAW OFFICES OF
Gary M. Appelblatt
3610 American Drive, Suite 112
Sacramento, CA 95864
Gary M. Appelblatt* Telephone
(916) 486-4200
Mary Driscoll Fascimilie
(916) 485-1735
*Admitted in California and Florida
August 27, 1999
Department of State
Divisions of Corporations
Post Office Box 6327
Tallahassee, FL 32314
RE: GOLDENACCESS.COM, INC.
Dear Sir or Madam:
Enclosed please find an original and two (2) copies of the Articles of
Merger for the above-named corporation. Please notice that the original
signature pages are signed in counterparts. I do not require certification.
Enclosed please find a check made payable to the Department of State,
Divisions of Corporations, in the amount of $70.00.
We've also enclosed a self addressed postage paid envelope for the
endorsed return copies. Thank you.
Sincerely,
Gary M. Appelblatt
GMA/smb
Enclosure
250
<PAGE>
ARTICLES OF MERGER
Merge Sheet
MERGING:
GOLDENACCESS.COM, INC> a Florida corporation, document P97000052555
INTO
CATHTECH GROUP, INC. which changed its name to
GOLDENACCESS.COM,INC. a Florida entity, P99000074437.
File date: August 30, 1999
Corporate Specialist: Carol Mustain
Division of Corporations-P.O. Box 6327-Tallahassee, FLorida 32314
251
<PAGE>
EXHIBIT 20.2
PLAN AND ARTICLES OF MERGER
252
<PAGE>
PLAN AND AGREEMENT OF MERGER pursuant to the General Corporation Law of
the State of Florida between GoldenAccess.Com, Inc, a Florida Corporation,
("GAC") and CathTech Group, Inc., a Florida corporation ("CTG").
WHEREAS, the constituent corporations desire to merge into a single
corporation;
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
provisions hereinafter contained, the constituent corporations do hereby
prescribe the terms and conditions of their merger and the mode of carrying such
merger into effect as follows:
FIRST: GAC, hereby merges into CTG which shall be the surviving
corporation.
SECOND: The manner of converting the outstanding shares of the capital
stock of the constituent corporations into the shares or other securities of
the surviving corporation shall be as follows:
1. The common shares of GAC shall be converted into common shares of CTG,
to the end that the issued and outstanding common shares of the surviving
corporation shall be owned 87.5% by the existing common shareholders of GAC and
12.5% by the existing common shareholders of CTG, their designees and other
related parties. Immediately following the merger, there shall be 2,872,500
issued and outstanding common shares.
2. After the effective date of this Agreement, each holder of an
outstanding certificate representing shares of common stock of the merged
corporation shall surrender such certificate to the surviving corporation and
each such holder shall be entitled upon such surrender to receive the number of
shares of common stock of the surviving corporation on the basis provided
herein. Until so surrendered, the outstanding shares of the stock of the merged
corporation to be converted into the stock of the surviving corporation as
provided herein may be treated by the surviving corporation as though such
surrender and exchange had taken place. After the effective date of this
Agreement, each registered owner of any un-certificated shares of common stock
of the merged corporation shall have such shares canceled and such registered
owner shall be entitled to the number of common shares of the surviving
corporation on the basis provided herein.
THIRD: The terms and conditions of the merger are as follows:
1. GAC shall be merged into CTG. CTG is hereby designated as the surviving
corporation.
2. The bylaws of the surviving corporation as they shall exist on the
effective date of this Agreement shall be and remain the bylaws of the surviving
corporation until they shall be altered, amended or repealed.
3. The officers and directors of GAC shall be appointed the officers and
directors of the surviving corporation to hold office until the next annual
meeting of stockholders, whereupon they would be subject to the normal and
ordinary election process described in the Bylaws of the surviving corporation
and shall have been elected and qualified.
253 43
<PAGE>
4. This merger shall become effective upon compliance with the filing and
other requirements of the laws of the State of Florida relating to the
effective date of corporate mergers provided that, for all accounting purposes
the effective date of the merger shall be as of 12:00 Midnight Florida time
on August 26, 1999.
5. Upon the merger becoming effective, all property, right, privileges,
licenses and assets of every kind of GAC shall be transferred to and vested in
CTG.
6. Upon the merger becoming effective, the name of CathTech Group, Inc.,
shall be changed to GOLDENACCESS.COM, INC.
FOURTH: The date of this Agreement is August 26, 1999.
FIFTH: : The authorized capital stock of GAC, a Florida corporation, is
100,000,000 shares of Common Stock, at zero par value.
IN WITNESS WHEREOF, the constituent corporations, pursuant to the approval
and authority duly given by resolutions adopted by their respective Boards of
Directors, have caused these presents to be executed as the respective act, deed
and agreement of such corporations as of this 26th day of August, 1999.
GOLDENACCESS.COM, INC. GOLDENACCESS.COM, INC.
By: Attest By:
- ----------------------------------- -----------------------------------
Clifford Pierce, President ,
Secretary
CathTech Group, Inc. CathTech Group, Inc.
By: Attest By:
- ----------------------------------- -----------------------------------
Alan Rabin, President & CEO , Secretary
254
<PAGE>
ARTICLES OF MERGER
OF
GOLDENACCESS.COM, INC.
The undersigned corporations, pursuant to Section 607.1101-1107 of the
Florida Business Corporation Act, hereby execute the following articles of
merger:
ARTICLE ONE
The names of the corporations proposing to merge and the names of the
states under the laws of which such corporations are organized are as follows:
NAME OF CORPORATION STATE OF INCORPORATION
GOLDENACCESS.COM, INC. Florida
CATHTECH GROUP, INC. Florida
ARTICLE TWO
The laws of the states under which such corporation are organized permit
such merger.
ARTICLE THREE
The name of the surviving corporation shall be GOLDENACCESS.COM, INC. and
it shall be governed by the laws of the State of Florida. To effect this name
change, the Certificate of Incorporation of CATHTECH GROUP, INC. shall be
amended contemporaneously with the effective date of the merger.
ARTICLE FOUR
The plan of merger is as follows:
1. GOLDENACCESS.COM, INC., a Florida corporation(AGAC@), shall be merged
into CATHTECH GROUP, INC., a Florida corporation(CTG). CTG is hereby designated
as the surviving corporation.
2. The terms and conditions of the proposed merger are:
(a) The bylaws of the surviving corporation as they shall exist on the
effective date of the agreement of merger shall be and remain the bylaws
of the surviving corporation until they shall be altered, amended or
repealed.
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(b) The officers and directors of GAC shall be appointed as the officers
and directors of the surviving corporation to hold office until the next
annual meeting of stockholders and until their successors shall have been
elected and qualified.
(c) The merger shall become effective upon filing with the Secretary of
State of Florida provided that, for all accounting purposes, the effective
date of the merger shall be as of 12:00 Midnight Florida time on August
26, 1999.
(d) Upon the merger becoming effective, all property, rights, privileges,
licenses and assets of every kind of GAC shall be transferred to and
vested in CTG.
(e) Upon the merger becoming effective, the name of CTG shall be changed
to GAC.
3. The common shares of GAC shall be converted into common shares of CTG, to the
end that, immediately following the merger, the issued and outstanding common
shares of the surviving corporation shall be owned 87.5% by the existing common
shareholders of GAC, and 12.5% by the existing common shareholders of CTG, their
designees and other related parties. Immediately following the merger, there
shall be two million eight hundred seventy two thousand five hundred (2,872,500)
issued and outstanding Common Shares.
ARTICLE FIVE
As to each corporation, the shareholders of which were required to vote
for approval, the number of shares outstanding, the number of shares entitled to
vote and the number and designation of shares of any class entitled to vote as a
class are:
NAME OF CORPORATION: CATHTECH GROUP, INC.
TOTAL NUMBER OF SHARES OUTSTANDING: 2,872,500 COMMON SHARES
TOTAL NUMBER OF SHARES 2,872,500
ENTITLED TO VOTE:
DESIGNATION OF CLASS ENTITLED TO NONE
VOTE AS A CLASS (if any):
NUMBER OF SHARES OF SUCH CLASS (if any): NONE
NAME OF CORPORATION: GOLDENACCESS.COM, INC.
TOTAL NUMBER OF SHARES OUTSTANDING: 4,050
TOTAL NUMBER OF SHARES 4,050
ENTITLED TO VOTE:
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DESIGNATION OF CLASS ENTITLED TO NONE
VOTE AS A CLASS (if any):
NUMBER OF SHARES OF SUCH CLASS (if any): NONE
ARTICLE SIX
As to each corporation, the shareholders of which were required to vote
for approval, the number of shares voted for and against the plan, respectively,
and the number of shares of any class entitled to vote as a class voted for and
against the plan, are:
NAME OF CORPORATION: CTG
TOTAL SHARES VOTED FOR: 2,872,500
TOTAL SHARES VOTED AGAINST: NONE
CLASS: NONE
SHARES VOTED FOR: NONE
SHARES VOTED AGAINST: NONE
NAME OF CORPORATION: GOLDENACCESS.COM, INC.
TOTAL SHARES VOTED FOR: 4,050
TOTAL SHARES VOTED AGAINST: NONE
CLASS: NONE
SHARES VOTED FOR: NONE
SHARES VOTED AGAINST: NONE
ARTICLE SEVEN
The plan of merger was authorized, adopted and approved by unanimous
written consent of the Board of Directors and of the shareholders entitled to
vote thereto of CTG as required by the General Corporation Act of Florida.
The plan of merger was authorized, adopted and approved by the unanimous
written consent of the Board of Directors and the shareholders entitled to vote
thereon of GAC, as required by the Florida Business Corporation Act.
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All provisions of the laws of the State of Florida applicable to the
proposed merger have been complied with.
ARTICLE EIGHT
The principal office in Florida of CTG is:
3 Commerce Blvd.
Palm Coast, Florida 32164
The registered office in Florida of GAC is:
1440 Kennedy Causeway, #301, Miami, Florida 33141
ARTICLE NINE
It is agreed that, upon and after the issuance of a certificate of merger
by the Florida Department of State:
1. The surviving corporation may be served with process in the State of
Florida in any proceeding for the enforcement of any obligation of any
corporation organized under the laws of the State of Florida which is a party to
the merger and in any proceeding for the enforcement of the rights of a
dissenting shareholder of any such corporation organized under the laws of the
State of Florida against the surviving corporation;
2. The Florida Department of State shall be and hereby is irrevocably
appointed as the agent of the surviving corporation to accept service of process
in any such proceeding; the addresses to which the service of process in any
such proceeding shall be mailed are set out in Article Eight above.
3. The surviving corporation will promptly pay to the dissenting
shareholders of any corporation organized under the laws of the State of Florida
which is a party to the merger the amount, if any, to which they shall be
entitled under the provisions of the Florida Business Corporation Act, with
respect to the rights of dissenting shareholders.
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IN WITNESS WHEREOF each of the undersigned corporations has caused these
articles of merger to be executed in its name by its president or vice-president
and secretary or assistant secretary, as of the Twenty Sixth day of August,
1999.
GOLDENACCESS.COM, INC. GOLDENACCESS.COM, INC.
By: Attest By:
- ----------------------------------- -----------------------------------
Clifford Pierce, President ,Secretary
CathTech Group, Inc. CathTech Group, Inc.
By: Attest By:
- ----------------------------------- -----------------------------------
Alan Rabin, President & CEO , Secretary
EXHIBIT 23.1
CONSENT OF COUNSEL
SEE EXHIBIT 5
EXHIBIT 23.2
CONSENT OF ACCOUNTANT
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form SB-2 of our
report dated November 12, 1999 relating to the financial statements of
GoldenAccess.Com,Inc., as of and for the year ended June 30, 1999 and for the
respective periods June 13, 1997 (date of incorporation) through June 30, 1998
and 1999. We also consent to the reference to us under the headings "Experts"
in such Registration Statement.
Kingery, Crouse & Hohl, P.A.
Tampa, Florida
November 12, 1999
