AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 4, 2000
REGISTRATION NO. ______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CACTUS SPINA, INC.
--------------------------------------------------------
(Exact name of Registrant as specified in its charter)
NEVADA 6770 77-0426995
---------------------------- ---------------------------- -----------------
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Number) Identification
organization) Number)
3930 Howard Hughes Parkway
Suite 100
Las Vegas, Nevada 89109
(702) 320-1900
--------------------------------------------------------
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Jim Pitochelli, President
Cactus Spina, Inc.
3930 Howard Hughes Parkway
Suite 100
Las Vegas, Nevada 89109
(702) 320-1900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------------------------------------
COPIES TO:
William B. Barnett, Esq.
Law Offices of William B. Barnett
15233 Ventura Boulevard
Suite 410
Sherman Oaks, California 91403
(818) 789-2688
<PAGE>ii
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At the
effective time of the reorganization of NoMatterWare, Inc., into Cactus Spina,
Inc., which reorganization shall occur as soon as practicable following the
effectiveness of this Registration Statement.
If any securities being registered on this Form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) 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. [ ]
<TABLE>
<S> <C> <C> <C> <C>
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE PRICE (2) FEE (2)
---------------------------------------- ---------------- ------------ ------------- ------------
Common Stock $.001 par value per share 5,280,592 -- -- $ 264.00
---------------------------------------- ---------------- ------------ ------------- ------------
</TABLE>
(1) The maximum number of shares of Common Stock, par value $.001, of Cactus
Spina, Inc., that may be issued upon consummation of the transactions
contemplated in the Plan and Agreement of Reorganization dated as of April
1, 2000, by and among NoMatterWare, Inc., and Cactus Spina, Inc., based on
5,280,592 shares of NoMatterWare, Inc. ("NoMatterWare") common stock, par
value $.001, currently outstanding.
(2) Estimated solely for the purpose of calculating the registration fee based
upon the book value of NoMatterWare's capital stock of $(.03) per share on
April 30, 2000, in accordance with Rule 457(f)(2) under the Securities Act
of 1933, as amended, (the "Act").
(3) Calculated pursuant to Rule 457(f) under the Act.
-------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>iii
NoMatterWare, Inc. Cactus Spina, Inc.
717 7th Avenue SW 3930 Howard Hughes Parkway
Suite 360 Suite 100
Calgary, Alberta, Canada T2P 0Z3 Las Vegas, Nevada 89109
To the stockholders of NoMatterWare, Inc., and Cactus Spina, Inc.
A REORGANIZATION PROPOSAL - YOUR VOTE IS VERY IMPORTANT
The board of directors of NoMatterWare, Inc., ("NoMatterWare") and Cactus Spina,
Inc., ("Cactus") have approved a Plan and Agreement of Reorganization which will
result in the acquisition of NoMatterWare by Cactus. Upon completion of the
reorganization, each share of NoMatterWare common stock will be exchanged for
one (1) share of Cactus common stock.
The reorganization cannot be completed unless the holders of more than a
majority of each company's outstanding shares of common stock approve the
reorganization agreement. Certain stockholders of NoMatterWare who hold
approximately 65% of the outstanding shares of NoMatterWare common stock have
agreed to vote their shares in favor of the reorganization. Certain stockholders
of Cactus who hold approximately 95% of the outstanding shares of Cactus common
stock have agreed to vote their shares in favor of the reorganization.
This proxy statement-prospectus provides you with detailed information
concerning Cactus, NoMatterWare and the reorganization. Please give all of the
information contained in the proxy statement-prospectus your careful attention.
IN PARTICULAR, YOU SHOULD CAREFULLY CONSIDER THE DISCUSSION IN THE SECTION
ENTITLED "RISK FACTORS" ON PAGE 6 OF THIS PROXY STATEMENT-PROSPECTUS.
The dates, times and places of the meetings are as follows:
For NoMatterWare, Inc. For Cactus Spina, Inc.
September 5, 2000 at 10:00 a.m. September 5, 2000 at 10:00 a.m.
717 7th Avenue SW 3930 Howard Hughes Parkway
Suite 360 Suite 100
Calgary, Alberta, Canada T2P 0Z3 Las Vegas, Nevada 89109
Please use this opportunity to take part in the affairs of Cactus and
NoMatterWare by voting on the approval of the reorganization agreement. Whether
or not you plan to attend the meeting, please complete, sign, date and return
the accompanying proxy in the enclosed self-addressed stamped envelope.
Returning the proxy does NOT deprive you of your right to attend the meeting and
to vote your shares in person. YOUR VOTE IS VERY IMPORTANT.
We appreciate your consideration of this matter.
Brad Churchill Jim Pitochelli
President President
NoMatterWare, Inc. Cactus Spina, Inc.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROXY STATEMENT-PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
This proxy statement-prospectus is dated September 5, 2000 and is first being
mailed to stockholders on or about August 21, 2000.
<PAGE>iv
NoMatterWare, Inc.
717 7th Avenue SW
Suite 360
Calgary, Alberta, Canada T2P 0Z3
NOTICE OF SPECIAL MEETING OF NOMATTERWARE, INC., STOCKHOLDERS
SEPTEMBER 5, 2000
AT 10:00 A.M.
To NoMatterWare Stockholders:
Notice is hereby given that a special meeting of stockholders of NoMatterWare,
Inc., ("NoMatterWare") will be held on September 5, 2000, at 10:00 a.m. local
time at the offices of NoMatterWare, Inc., 717 7th Avenue SW, Suite 360,
Calgary, Alberta, Canada T2P 0Z3, for the following purposes:
1. To consider and vote upon a proposal to approve the Plan and Agreement
of Reorganization, dated April 1, 2000, by and among Cactus Spina,
Inc., ("Cactus") and NoMatterWare, Inc., ("NoMatterWare") pursuant to
which each share of NoMatterWare common stock, par value $.001 per
share, will be exchanged for one (1) share of Cactus common stock, par
value $.001 per share. Upon the completion of the reorganization,
Cactus will change its name to NoMatterWare. Approval of the
reorganization agreement will also constitute approval of the
reorganization and the other transactions contemplated by the
reorganization agreement.
2. To transact such other business as may properly come before the special
meeting or any adjournment thereof.
These items of business are described in the attached proxy
statement-prospectus. Only holders of record of NoMatterWare shares at the close
of business on July 14, 2000, the record date, are entitled to vote on the
matters listed in this Notice of Special Meeting of NoMatterWare Stockholders.
AFTER CAREFUL CONSIDERATION, YOUR BOARD OF DIRECTORS UNANIMOUSLY DETERMINED THAT
THE REORGANIZATION IS CONSISTENT WITH AND IN FURTHERANCE OF THE LONG-TERM
BUSINESS STRATEGY OF NOMATTERWARE AND FAIR TO AND IN THE BEST INTERESTS OF
NOMATTERWARE AND ITS STOCKHOLDERS. NOMATTERWARE'S BOARD OF DIRECTORS APPROVED
AND DECLARED ADVISABLE THE REORGANIZATION AGREEMENT AND UNANIMOUSLY RECOMMENDS
ITS APPROVAL BY YOU.
Your vote is very important, regardless of the number of shares you own. Please
return you proxy as soon as possible. You may vote in person at the NoMatterWare
special meeting even if you have returned a proxy.
By Order of the Board of Directors
of NoMatterWare, Inc.
Brad Churchill, President
Calgary, Alberta, Canada
August _____, 2000
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, PLEASE COMPLETE, SIGN, DATE AND
RETURN THE ACCOMPANYING PROXY IN THE ENCLOSED SELF-ADDRESSED STAMPED ENVELOPE.
<PAGE>v
Cactus Spina, Inc.
3930 Howard Hughes Parkway
Suite 100
Las Vegas, NV 89109
NOTICE OF SPECIAL MEETING OF CACTUS SPINA, INC., STOCKHOLDERS
SEPTEMBER 5, 2000
AT 10:00 A.M.
To Cactus Stockholders:
Notice is hereby given that a special meeting of stockholders of Cactus Spina,
Inc., ("Cactus") will be held on September 5, 2000, at 10:00 a.m. local time at
the offices of Cactus, 3930 Howard Hughes Parkway, Suite 100, Las Vegas, NV
89109 for the following purposes:
1. To consider and vote upon a proposal to approve the Plan and Agreement
of Reorganization, dated April 1, 2000, by and among Cactus Spina,
Inc., ("Cactus") and NoMatterWare, Inc. ("NoMatterWare"), pursuant to
which each share of NoMatterWare common stock, par value $.001 per
share, will be exchanged for one (1) share of Cactus common stock, par
value $.001 per share. Upon completion of the reorganization, Cactus
will change its name to NoMatterWare. Approval of the reorganization
agreement will also constitute approval of the reorganization and the
other transactions contemplated by the reorganization agreement.
2. To transact such other business as may properly come before the special
meeting or any adjournment thereof.
These items of business are described in the attached proxy
statement-prospectus. Only holders of record of Cactus shares at the close of
business on July 14, 2000, the record date, are entitled to vote on the matters
listed in this Notice of Special Meeting of Cactus Stockholders.
AFTER CAREFUL CONSIDERATION, YOUR BOARD OF DIRECTORS UNANIMOUSLY DETERMINED THAT
THE REORGANIZATION IS CONSISTENT WITH AND IN FURTHERANCE OF THE LONG-TERM
BUSINESS STRATEGY OF CACTUS AND FAIR TO AND IN THE BEST INTERESTS OF CACTUS AND
ITS STOCKHOLDERS. CACTUS' BOARD OF DIRECTORS APPROVED AND DECLARED ADVISABLE THE
REORGANIZATION AGREEMENT AND UNANIMOUSLY RECOMMENDS ITS APPROVAL BY YOU.
Your vote is very important, regardless of the number of shares you own. Please
return you proxy as soon as possible. You may vote in person at the Cactus
special meeting even if you have returned a proxy.
By Order of the Board of Directors of
Cactus Spina, Inc.
Jim Pitochelli, President
Las Vegas, NV
August _____, 2000
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, PLEASE COMPLETE, SIGN, DATE AND
RETURN THE ACCOMPANYING PROXY IN THE ENCLOSED SELF-ADDRESSED STAMPED ENVELOPE.
<PAGE>vi
TABLE OF CONTENTS
<TABLE>
<S> <C>
PAGE
----
To Stockholders -A Reorganization Proposal.............................................iii
Notice of Special Meeting of NoMatterWare, Inc., Stockholders...........................iv
Notice of Special Meeting of Cactus Spina, Inc., Stockholders............................v
Questions And Answers About The Reorganization...........................................1
Summary Of Joint Proxy Statement Prospectus..............................................3
Restrictions On The Ability To Sell Cactus Stock.........................................5
Selected Historical Financial Data.......................................................5
Risk Factors.............................................................................7
Risk Factors Relating To The Reorganization..............................................7
Risk Factors Relating to Cactus'Business..............................................7
Risk Factors Relating to NoMatterWare's Business......................................7
Rick Factors Relating to the Cactus Stock............................................10
The Reorganization......................................................................11
Dissenter's and Appraisal Rights........................................................15
Business of Cactus......................................................................17
Management..............................................................................17
Business of NoMatterWare................................................................17
Management..............................................................................22
Principal...............................................................................23
Principal Stockholders of Cactus........................................................23
Comparison Of Rights Of Holders Of Cactus And NoMatterWare Capital Stock................24
Legal Opinion...........................................................................28
Experts.................................................................................28
Where You Can Find More Information.....................................................28
Disclosure Of Commission Position On Indemnification For Securities Act Liabilities.....29
APPENDIX A - Plan and Agreement of Reorganization, as amended ........................A-1
</TABLE>
<PAGE>1
QUESTIONS AND ANSWERS ABOUT THE REORGANIZATION
Q: Why are NoMatterWare and Cactus proposing the reorganization?
A: To provide liquidity for the NoMatterWare stockholders should they want to
sell their stock, and to provide NoMatterWare with the advantages of a
public company in raising funds and making acquisitions. The Cactus
shareholders should also benefit by having a viable and growing business as
part of Cactus.
Q: What will I receive in the reorganization?
A: All NoMatterWare stockholders will receive SEC registered free trading
stock in a US public corporation which will be named NoMatterWare. The
current Cactus shareholders will retain their shares of Cactus and their
holding period relating to resales under Rule 144 will be calculated from
their original acquisition date.
Q: What stockholder approvals are needed?
A: For NoMatterWare, the affirmative vote of the holders of a majority of the
outstanding shares of NoMatterWare's common stock is required to adopt the
reorganization agreement. Each holder of common stock is entitled to one
vote per share. As of the record date directors, executive officers and
principal stockholders who hold an aggregate of 65% of the outstanding
common stock have committed to vote for the reorganization.
For Cactus, the affirmative vote of the holders of a majority of the
outstanding shares of Cactus common stock is required to adopt the
reorganization agreement. Each holder of common stock is entitled to one
vote per share. As of the record date directors, executive officers and
principal stockholders who hold an aggregate of 95% of the outstanding
common stock have committed to vote for the reorganization.
Q: What do I need to do now?
A: After carefully reading and considering the information contained in this
joint proxy statement-prospectus, please respond by completing signing and
dating your proxy card returning it in the enclosed postage paid envelope
as soon as possible so that your shares may be represented at the special
meeting of stockholders.
Q: What if I don't vote?
A: If you fail to respond, it will have the same effect as a vote against the
reorganization.
If you respond and do not indicate how you want to vote, your proxy will be
counted as a vote in favor of the reorganization.
If you respond and abstain from voting, your proxy will have the same
effect as a vote against the reorganization.
Q: Can I change my vote after I have delivered my proxy?
A: Yes. You can change your vote at any time before your proxy is voted at the
special meeting. You can do this in one of three ways. First, you can
revoke your proxy. Second, you can submit a new proxy. If you choose either
of these two methods , you must submit your notice of revocation or your
new proxy to the secretary of NoMatterWare or Cactus, as appropriate,
before the special meeting. Third, if you are a holder of record, you can
attend the special meeting and vote in person.
Q: Should I send in my stock certificates now?
A: No. After the reorganization is completed you will receive written
instructions on how to exchange your stock certificates. Please do not
send your stock certificates with your proxy.
<PAGE>2
Q: Where will my shares of common stock be listed?
A: After the completion of the reorganization, NoMatterWare intends to apply
for listing on the NASDAQ over the counter bulletin board. There is no
assurance that NoMatterWare's common stock will be approved for such
listing.
Q: When do you expect the reorganization to be completed?
A: We are working to complete the reorganization as soon as possible. We
expect to complete the reorganization by early September 2000.
Q: Who can help answer my questions?
A: If you have any questions about the reorganization or how to submit your
proxy, or if you need additional copies of this joint proxy
statement-prospectus or the enclosed proxy card, you should contact:
If you are a NoMatterWare stockholder:
NoMatterWare, Inc.
717 7th Avenue SW
Suite 360
Calgary, Alberta, Canada T2P 0Z3
Phone: (403) 705-1953
If you are a Cactus Spina stockholder:
Cactus Spina, Inc.
3930 Howard Hughes Parkway
Suite 100
Las Vegas, NV 89109
Phone: (702) 320-1900
<PAGE>3
SUMMARY OF JOINT PROXY STATEMENT-PROSPECTUS
This summary highlights selected information in the joint proxy
statement-prospectus and may not contain all of the information that is
important that is important to you. You should carefully read this entire joint
proxy statement-prospectus and the other documents we refer to for a more
complete understanding of the reorganization. In particular, you should read the
documents attached to this joint proxy statement-prospectus, including the
reorganization agreement, which is attached as Annex A.
NoMatterWare, Inc.
717 7th Avenue SW
Suite 360
Calgary, Alberta, Canada T2P 0Z3
(403) 705-1953
http:www.nomatterware.com
NoMatterWare offers small to medium size businesses easy to use tools at
affordable prices to design and use web sites for e-commerce.
NoMatterWare is a Calgary, Canada, based company, which is among the first to
provide a set of web site construction and maintenance tools that any small
business or nonprofit organization can use to create, own and manage a fully
interactive, professional looking Internet presence with no restrictions on
size. The customer can verify and accept credit cards in real time, and make
virtually any changes they want to the content, at any time of the day from any
computer connected to the Internet - all without needing to purchase any
software, install any software, or utilize a professional web developer. This
service places into the hands of the small business entrepreneur a turn key
e-commerce Internet presence for as little as $30 per month.
Since its founding in May 1999, NoMatterWare has developed and tested several of
22 tools in 40 styles to enable the user to customize his site and Internet
operations to satisfy his businesses own unique needs. Over a thousand customers
are already using our web tools. And through agreements with Hewlett Packard,
some moderate size ISPs and others, we expect to grow rapidly.
Recent Developments.
Our office is in Calgary, Alberta, Canada. This location is on a main fiber
optic trunk of Metronet Corporation, and we have been able to secure an
extended, very inexpensive dedicated T1 Internet connection and a 10-megabit
fiber connection right into our server room. Additional extra Internet bandwidth
is readily available when we need it.
In order to remain at the leading edge of Internet business innovation we
subcontract development to Churchill Consulting Services. They, in turn, use the
most leading edge tools available, such as MS SQL Server 7.0.
To further support our customers we have partnered with DataCom, one of the
largest inbound/outbound call centers in Canada. With more than 250 stations in
Toronto and another 150 in Montreal, DataCom is easily able to handle all of the
support and customer follow-up calls required by NoMatterWare customers. We are
also in the process of partnering with numerous other call centers for more
internet-centric styles of support and marketing.
Our early stage marketing focuses on the establishment of strategic alliances
with companies that are in a position to actively promote NoMatterWare to their
large base of customers. Our recent partnership with CyberSurf Corporation, and
commencement of negotiation with Webtransact.net are examples of such a
strategy. By securing alliances with both companies, we can anticipate securing
a customer base of over 18,000 small businesses within the next few months -
some at a wholesale price, and some at full retail price.
<PAGE>4
Cactus Spina, Inc.
3930 Howard Hughes Parkway, Suite 100
Las Vegas, NV 89109
(702) 320-1900
Cactus Spina, Inc., a Nevada corporation, founded in 1996, is an inactive public
company, commonly referred to as a "shell" corporation. A controlling interest
in Cactus was acquired in March 2000 by FTCG Enterprises, Inc. Cactus will issue
5,280,592 new shares to acquire all of the issued and outstanding shares of
NoMatterWare. All stockholders of both companies will then own only Cactus stock
and Cactus will change its name to NoMatterWare, Inc.
The Structure of the Reorganization
The Alberta based NoMatterWare will be renamed NoMatterWare Canada and will be a
wholly owned subsidiary of the parent company, NoMatterWare, Inc., a Nevada
corporation.
Recommendation of Boards of Directors
To NoMatterWare Stockholders: The NoMatterWare board of directors believes that
the reorganization is fair to you and in your best interest and unanimously
voted to approve the reorganization agreement and unanimously recommends that
you vote FOR the adoption of the reorganization agreement.
To Cactus Stockholders: The Cactus board of directors believes that the
reorganization is fair to you and in your best interest and unanimously voted to
approve the reorganization agreement and unanimously recommends that you vote
FOR the adoption of the reorganization agreement.
Special Meetings
Special Meeting of NoMatterWare Stockholders. The NoMatterWare special meeting
will be held at 717 7th Avenue SW, Suite 360, Calgary, Alberta, Canada T2P 0Z3
on September 5, 2000, starting at 10:00 a.m. local time.
Special Meeting of Cactus Stockholders. The Cactus special meeting will be held
at 3930 Howard Hughes Parkway, Suite 100, Las Vegas, Nevada 89109, on September
5, 2000, starting at 10:00 a.m., local time.
Board of Directors and Management Following the Reorganization
We have agreed that the board of directors and the management will be the same
as for the current NoMatterWare.
Brad Churchill - President, Chairman of the Board
Lise Bradley - Vice President, Director
Tom Milne - Chief Financial Officer
Bill Burns - Chief Operations Officer
Denice Hansen - Marketing Director
Tax Consequences
This reorganization is structured as a tax-free exchange of stock. Stockholders
should check their individual tax consequences with their own tax advisors.
Overview of the Reorganization Agreement
The reorganization is intended to be a tax free exchange with Cactus issuing
5,280,592 of its shares for 100% of the outstanding common stock of
NoMatterWare. After completion of the reorganization NoMatterWare stockholders
will own approximately 84% of the issued and outstanding stock of NoMatterWare.
The transaction will only be completed if at least 90% of the shares of
NoMatterWare are tendered.
After completion of the reorganization NoMatterWare securities holders will own
a majority of the stock in Cactus and will install its own board of directors.
Cactus will change its name to NoMatterWare, Inc., and NoMatterWare of Canada
will be established as a wholly owned subsidiary.
<PAGE>5
RESTRICTIONS ON THE ABILITY TO SELL CACTUS STOCK (SEE PAGE 13)
Shares of Cactus common stock retained by current Cactus shareholders will be
tradable in accordance with Rule 144 if these shares have been held for more
than one (1) year. If shares are held for more than two years, they may be
freely tradable. Any shares of Cactus common stock received in connection with
the reorganization will be freely transferable unless the holder is considered
an "affiliate" of either NoMatterWare or Cactus under the Securities Act of
1933. Shares of Cactus common stock held by affiliates may only be sold pursuant
to a registration statement or exemption under the Securities Act.
SELECTED HISTORICAL FINANCIAL DATA
The following tables present (1) selected historical and financial data of
Cactus, (2) selected historical and financial data of NoMatterWare.
CACTUS SPINA, INC.
(A Development Stage Company)
Selected Historical and Financial Data
The selected historical and financial data of Cactus has been derived from
audited financial statements and related notes for the years ended December 31,
1999, 1998 and 1996 and stub period ended April 30, 2000. The historical data is
only a summary, and you should read it in conjunction with the audited financial
statement and related notes contained in this document.
Year Ended
April 30, 2000
(in U.S. Dollars)
------------------------
Statement of Operations Data:
(for a Development Stage Company)
Revenue -0-
Net Loss $(2,850)
Balance Sheet Data:
Cash and Equivalents -0-
Total Assets -0-
Current Liabilities -0-
Stockholders' Deficiency $(2,850)
NOMATTERWARE, INC.
(A Development Stage Company)
Selected Historical and Financial Data
The selected historical and financial data of NoMatterWare has been derived from
audited financial statements and related notes for the year ended April 30,
2000. The historical data is only a summary, and you should read it in
conjunction with the audited financial statement and related notes contained in
this document.
Year Ended
April 30, 2000
(in U.S. Dollars)
------------------------
Statement of Operations Data:
(for a Development Stage Company)
Revenue $ 8,399
Net Loss $ (807,001)
Balance Sheet Data:
Cash and Equivalents $ 9,474
Total Assets $ 400,980
Current Liabilities $ 587,593
Stockholders' Deficiency $ (186,613)
<PAGE>6
Significant events:
NoMatterWare, Inc., was incorporated in Alberta, Canada on May 14, 1999. A
company, Travis Technologies, Inc., was incorporated in Nevada on June 30, 1998,
but did not commence operating activities and was considered dormant. On January
20, 2000, Travis acquired all of the issued and outstanding shares of
NoMatterWare, Inc., of Canada and changed its name to NoMatterWare South, Inc.
and subsequently to NoMatterWare, Inc. NoMatterWare, Inc., is a Nevada
corporation which has NoMatterWare of Canada as a wholly owned subsidiary.
Management Discussion and Analysis of Financial Condition and Results of
Operations.
The following discussion relates to the NoMatterWare audited financial
statement, Statement of Operations and Balance Sheet.
Results of Operations
Revenue.
Revenue for the year was limited because the company is in its development stage
and is still developing and evolving the software. Revenue was generated from
parties in our initial test group signing up to use the software, once it was
complete.
Expenses.
Advertising: Much of the advertising budget for the year was spent in
preparation for and exhibiting at the Comdex technology show in Las Vegas in
November of 1999. Some of the expenditures were used to test advertising in a
number of markets, including various forms of advertising in newspapers and
magazines.
Depreciation: Depreciation was calculated on a small amount of purchased capital
equipment. The expensive servers and internet connection were hosted and managed
by Churchill Consulting Services Inc.
Consulting: Most of our software development work was contracted to independent
outside consultants. In addition professional companies were paid to assist in
raising funds
Office: These were standard office expenses including phone, supplies and
shipping.
Professional Fees: These were legal and accounting expenses.
Rent: Rent on our existing office space at the rate of $4500 per month.
Wages: This is the compensation of executives and other employees for the year.
Liquidity and Capital Resources
Cash and Cash Equivalents: This line item currently represents as of April 30,
2000 the cash balance of the company bank account and a certain amount of funds
held in trust by a California-based securities lawyer.
Accounts Receivable: This represents to a large degree the billables to one
customer.
Due From Shareholders: Later in 1999, a vice president was granted a loan to
handle some personal issues.
Software License: Software license and all proprietary interest was purchased
from a company partially controlled by the President, Brad Churchill, and is
being amortized over a 36 month period.
Accounts Payable: Accounts payable consists largely of $300,000 owed for
software development and hosting services provided by Churchill Consulting
Services Inc. a company partially controlled by our President, Brad Churchill,
and $151,000 owed for various other expenses to a number of companies who have
<PAGE>7
provided products or services to NoMatterWare Inc.
Loan Payable: Loan Payable is for advances from FTCG Enterprises Inc. a company
controlled by NoMatterWare's President. Payment terms are based on 12 equal
installments to begin either on the date of trading, or on the date of securing
secondary financing.
The year 1999 was a year of growth and development for the company. As with any
Internet startup, the funding raised went into building a corporate
infrastructure and hiring staff, as well as continued development and testing of
the NoMatterWare software.
Although the balance sheet shows a liquidity problem, we expect to resolve this
with funds coming from implementation of an extensive marketing and advertising
strategy, hiring of sales staff, and from the securing of secondary financing by
a large financial institution. This combination is anticipated to provide
adequate capital for operations for the next 12 months and make the company a
viable and profitable entity.
RISK FACTORS
An investment in Cactus common stock involves a high degree of risk. In addition
to other information contained in or incorporated by reference into this Proxy
Statement-Prospectus, you should carefully consider the following risk factors
in deciding whether to vote to approve the reorganization.
RISK FACTORS RELATING TO THE REORGANIZATION
BETWEEN CACTUS AND NOMATTERWARE
Although NoMatterWare expects that the reorganization will
result in benefits, those benefits may not be realized.
NoMatterWare has entered into the reorganization agreement expecting that the
reorganization will result in benefits, including allowing NoMatterWare to enter
into reorganizations and acquisitions utilizing its publicly traded securities
as consideration, making investment capital more readily available to
NoMatterWare and providing its shareholders with liquidity for their shares.
Achieving the benefits of the reorganization will depend in part on a public
trading market developing for shares. Cactus shares are not currently trading
and there is no assurance that a market for these shares will develop or that
the shares will trade at a price or at a volume that will provide the benefits
listed above.
RISK FACTORS RELATING TO CACTUS' BUSINESS
Cactus has had limited operations since its formation in 1996.
Cactus was incorporated in April 1996, and has had no revenues to date. It is
not anticipated that Cactus' business will be developed in the immediate future,
if at all, other than for the reorganization with NoMatterWare.
RISK FACTORS RELATING TO NOMATTERWARE'S BUSINESS
NoMatterWare has a history of losses and expects continued losses.
NoMatterWare incurred net losses of approximately $800,000 for the year end
April 30, 2000. As of April 30, 2000, NoMatterWare had an accumulated deficit of
approximately $800,000 representing, in large part, the sum of our historical
net losses. It has not achieved profitability in any quarterly or annual period,
and it expects to continue to incur net losses for the foreseeable future.
NoMatterWare has a limited operating history.
NoMatterWare of Canada was incorporated on May 14, 1999, and began offering
services to the public in March of 2000. These services include the sale and
rental of software for business to business commerce for small and medium sized
businesses.
<PAGE>8
When making your voting decision, you should consider the risks and difficulties
it may encounter in the new and rapidly evolving Internet software market,
especially given its limited operating history. These risks include its ability
to:
o Expand its subscriber base and increase subscriber revenues;
o Compete favorably in a highly competitive market;
o Access sufficient capital to support its growth;
o Recruit and retain qualified employees and independent
representatives; and
o Introduce new products and services.
NoMatterWare cannot be certain that we will successfully address any of these
risks. In addition, its business is subject to general economic conditions,
which may not be favorable for its business in the future.
NoMatterWare's strategy of expansion through acquisition may not be effective.
As a key component of its growth strategy, NoMatterWare intends to acquire
companies and assets that it feels will enhance its revenue growth, operations
and profitability. Acquisitions may result in the use of significant amounts of
cash, potentially dilutive issuances of equity securities and expenses, each of
which could materially and adversely affect its business. These acquisitions
involve numerous risks, including:
o the difficulties in the integration and assimilation of the
operations, technologies, products and personnel of the acquired
business;
o the diversion of management's attention from other business concerns;
o the availability of favorable financing for future acquisitions; and
o the potential loss of key employees of any acquired business.
It will need to be able to successfully integrate such acquired businesses, and
the failure to do so could have a material adverse effect on its business,
results of operations and financial condition.
NoMatterWare's liquidity and capital resources are limited and it will need to
raise more money in the future to develop and expand its existing business.
NoMatterWare will require significant capital resources to develop and expand
its existing businesses, acquire or develop additional Internet and
telecommunications-related businesses, and fund near term operating losses. Thus
far, it has paid for near term capital expenses, operating losses and working
capital requirements from sales of its capital stock in private placements. As
of April 30, 2000, NoMatterWare has raised over $800,000 in sales of its capital
stock. Longer term, it is likely that it will need to raise additional money to
fully implement its goals.
NoMatterWare will need to seek additional capital from public or private equity
or debt sources to fund its growth and operating plans.
It cannot be certain that it will be able to raise additional capital in the
future on terms acceptable to NoMatterWare or at all. If alternative sources of
financing are insufficient or unavailable, it will be required to modify its
growth and operating plans in accordance with the extent of available financing.
NoMatterWare faces heavy competition in the Internet and telecommunication
industry for all of the services it currently provides and those it intends to
provide in the future.
NoMatterWare faces intense competition in conducting its business, and it
expects such competition to continue to increase. Its competitors include
various other Internet companies with much larger resources than it has.
Furthermore, a number of competitors offer a broader variety of business
services and may have done so for longer periods of time. Every local market it
<PAGE>9
has entered or intends to enter is served by multiple Internet software
providers. Its current and prospective competitors include many large companies,
almost all of which are better known than NoMatterWare and may have greater
financial, technical and marketing resources than it does.
As a result of increased competition in its industry, NoMatterWare expects to
encounter significant pricing pressure. It cannot be certain that it will be
able to offset the effects of any required price reductions through an increase
in the number of its subscribers, higher revenues from its business services,
cost reductions or otherwise, or that it will have the resources to continue to
compete successfully.
Customers may not accept NoMatterWare's planned services.
The success of the business strategy will depend upon consumer acceptance of
NoMatterWare's planned offerings, some of which are in their early stages of
deployment or are only in the planning stage. Subscriber acceptance could be
hurt by customer loyalty to more established competitors and unfamiliarity with
NoMatterWare. In addition, it cannot be sure that technical problems will not
impede or delay subscriber acceptance of its services.
NoMatterWare depends on the services of a small number of key management people.
NoMatterWare believes that its success depends to a significant extent upon the
abilities and continued efforts of its senior management. The loss of the
services of any of these people could have a negative effect upon our results of
operations and financial condition.
While the management of NoMatterWare has extensive experience in the network
marketing, software and systems development, retailing, Internet operations and
in operating companies, the combined management experience of the principals may
not meet all of the requirements or the demands of the day to day operations of
a developing Internet software provider. Therefore, it is possible that it may
find it necessary to retain the services of consultants and management level
staff. Competition for experienced persons in these fields is intense.
Because of the fast pace of technological change in the Internet industry, there
is a risk that NoMatterWare will fall behind in keeping up with change, which
could harm its ability to compete.
The Internet software market is characterized by rapidly changing technology,
evolving industry standards, changes in member needs and frequent new service
and product introductions. NoMatterWare's future success depends, in part, on
its ability to use leading technologies effectively, to develop its technical
expertise, to enhance its existing services and to develop new services that
meet changing member needs on a timely and cost-effective basis. In particular,
it must provide subscribers with the appropriate products, services and guidance
to best take advantage of the rapidly evolving Internet. Its failure to respond
in a timely and effective manner to new and evolving technologies could have a
negative impact on its business and financial results.
NoMatterWare's business depends on continued growth of
the Internet as a medium of communication and commerce.
NoMatterWare's future success in the Internet business substantially depends on
continued growth in the use of the Internet. Although it believes that Internet
usage and popularity will continue to grow as it has in the past, it cannot be
certain that this growth will continue or that it will continue in its present
form. If Internet usage declines or evolves away from NoMatterWare's business,
its growth in this area will slow or stop and its financial results may suffer.
Any decline in member retention levels for NoMatterWare's
Internet services may adversely affect it.
NoMatterWare's new member acquisition costs are substantial relative to the
monthly fees it charges. Accordingly, its long-term success largely depends on
its retention of existing members. While it continues to invest significant
resources in its infrastructure and technical and member support capabilities,
it is relatively easy for Internet users to switch to competing providers. Any
significant loss of members will substantially decrease its revenue and cause
its business to suffer.
<PAGE>10
RISK FACTORS RELATING TO THE CACTUS STOCK
Cactus stock may be difficult to resell.
Prior to this reorganization, you could not buy or sell Cactus common stock
publicly. An active public market for Cactus common stock may not develop or be
sustained after this offering.
You may not be able to resell shares of our stock
at or for more than the price you paid
The stock market in general, and the stock prices of Internet companies in
particular, have recently experienced extreme volatility that often has been
unrelated to the operating performance of any specific public companies. If
continued, these broad market and industry fluctuations may adversely affect the
trading price of Cactus common stock, regardless of our actual operating
performance.
If our shareholders sell substantial amounts of our stock in the public market,
the market price of our stock could fall.
If Cactus shareholders sell substantial amounts of common stock in the public
market, the market price of the common stock could fall. Such sales also might
make it more difficult for us to sell equity or equity-related securities in the
future at a time and place that we deem appropriate.
Sales of Cactus securities may be subject to the penny stock rules.
The resale of Cactus' securities may be subject to the requirements of the penny
stock rules, absent the availability of an exemption. The SEC has adopted rules
that regulate broker/dealer practices in connection with transactions in "penny
stocks." Penny stocks are usually equities selling for under $5.00, which are
not registered on certain national exchanges or quoted on the NASDAQ system. The
penny stock rules may obligate the broker/dealer to deliver a standardized risk
disclosure document, to provide the customer with current bid and offer
quotations for the penny stock, the compensation of the broker/dealers and its
salespersons in those transactions, and money account statements showing the
market value of each penny stock held in the customer accounts, to make a
special written determination that the penny stock is a suitable investment for
the purchaser and to receive the purchaser's written agreement to the
transaction. These disclosure requirements may have the effect of reducing the
level of trading activity in the secondary market for a stock that becomes
subject to the penny stock rule. As long as Cactus common stock is subject to
the penny stock rules, investors may find it more difficult to sell their
securities. The market liquidity for Cactus' securities could be severely and
adversely affected by limiting the ability of broker/dealers to sell Cactus'
securities and the ability of the investors to sell their securities in the
secondary market.
Principal shareholders, executive officers and directors
will retain substantial influence following this offering.
NoMatterWare executive officers, directors and existing 5% and greater
shareholders will beneficially own or control a substantial portion of Cactus
common stock after the reorganization. As a result, such persons, if they were
to act together, will be in a position to elect and remove directors and control
the outcome of most matters submitted to shareholders for a vote. Additionally,
such persons would be able to influence significantly a proposed amendment to
our charter, a reorganization proposal, a proposed sale of assets or other major
corporate transaction or a non-negotiated takeover attempt. Such concentration
of ownership may discourage a potential acquirer from making an offer to buy our
company, which, in turn, could adversely affect the market price of our common
stock.
Forward-looking statements contained in this document may not be accurate.
Included in this Proxy Statement-Prospectus are various forward-looking
statements which can be identified by the use of forward looking terminology
such as "may," "will," "expect," "anticipate," "estimate," "continue," "believe"
or other similar words. We have made forward-looking statements with respect to
the following, among others:
<PAGE>11
o our goals and strategies;
o the importance and expected growth of Internet technology;
o the pace of change in Internet and telecommunications marketplace;
o the demand for Internet and telecommunications services; and
o various product offerings.
These statements are forward-looking and reflect the current expectations of
NoMatterWare and Cactus. They are subject to a number of risks and
uncertainties, including but not limited to, changes in technology and changes
in the Internet and telecommunications marketplace. In light of the many risks
and uncertainties surrounding the Internet and telecommunications marketplace,
shareholders should keep in mind that neither NoMatterWare nor Cactus can
guarantee that the forward-looking statements described in this Proxy
Statement-Prospectus will transpire.
THE REORGANIZATION
This section of the Proxy Statement-Prospectus describes material aspects of the
proposed reorganization, including the reorganization agreement. While we
believe that the description covers the material terms of the reorganization and
the related transactions, this summary may not contain all of the information
that is important to you. You should read this entire document and the other
documents we refer to carefully for a more complete understanding of the
reorganization.
Background of the reorganization.
In March 2000, a group of investors, purchased 900,000 shares of Cactus' common
stock from James Pitochelli, the President of Cactus, for $150,000. These
900,000 shares represent 90% of the then-issued and outstanding Cactus common
stock. In April 2000, Cactus entered into an agreement to acquire 100% of the
issued and outstanding stock of NoMatterWare for 5,282,592 Cactus shares.
Cactus' reasons for the reorganization.
Cactus has generated no revenues. The board of directors has determined that
following the reorganization the shareholders of Cactus will be the owners of an
operating company, and that they will have the potential to realize appreciation
in their share holdings.
Recommendation of Cactus' Board of Directors.
After careful consideration, the Cactus board of directors unanimously
determined the reorganization to be fair to Cactus shareholders and in their
best interests and declared the reorganization advisable. Cactus' board of
directors approved the reorganization agreement and unanimously recommends
adoption of the reorganization agreement.
NoMatterWare's reasons for the reorganization.
NoMatterWare's board of directors believes that the reorganization will be
beneficial to NoMatterWare and its shareholders for the following reasons:
o The reorganization will result in a publicly traded company, which may
make public financing more readily available.
o The public trading market for the shares may allow it to negotiate
reorganizations and/or acquisitions utilizing its capital stock as
consideration.
o The reorganization may provide liquidity for holders of its common
stock, which will be listed and traded.
<PAGE>12
o NoMatterWare's board of directors determined that the reorganization
was fair, from a financial point of view, to the NoMatterWare
shareholders.
o NoMatterWare's board weighed strategic alternatives to the
reorganization, including remaining a non-public company and
determined the reorganization was the best alternative.
In the course of its deliberations, the NoMatterWare board reviewed with
management and outside advisors a number of additional factors relevant to the
reorganization, including:
o NoMatterWare's business, financial condition, results of operations
and prospects.
o The impact of the reorganization on NoMatterWare's customers and
independent representatives.
o NoMatterWare's evaluation of other, potential strategic relationships.
NoMatterWare's board of directors also identified and considered a variety of
potentially negative factors in its deliberations concerning the reorganization,
including, but not limited to:
o The risk that the potential benefits sought in the reorganization
might not be fully realized, including, the possibility that public
stock might not attain or maintain a public trading market.
o The costs involved in the reorganization.
o The other risks described under "Risk Factors" on page 6 of this Proxy
Statement-Prospectus.
NoMatterWare's board of directors believed that these risks were outweighed by
the potential benefits of the reorganization.
The foregoing discussion is not exhaustive of all factors considered by
NoMatterWare's board of directors. Each member of the board may have considered
different factors, and the board evaluated these factors as a whole and did not
qualify or otherwise assign relative weights to factors considered.
Completion and effectiveness of the reorganization.
The reorganization will be completed when all of the conditions to completion of
the reorganization are satisfied or waived, including adoption of the
reorganization agreement by the shareholders of Cactus. The reorganization will
become effective shortly after approval by the NoMatterWare and Cactus
shareholders.
Both companies are working towards completing the reorganization as quickly as
possible.
Structure of the reorganization and exchange of NoMatterWare capital stock.
In accordance with the reorganization agreement, NoMatterWare will be acquired
by Cactus. As a result of the reorganization, NoMatterWare will become a
wholly-owned subsidiary of Cactus. Upon the completion of the reorganization,
the name of Cactus will be changed to NoMatterWare, Inc.
Upon completion of the reorganization, each outstanding share of NoMatterWare
common stock will be exchanged for one (1) share of Cactus common stock.
Cactus shareholders will also be asked to consent to an amendment to Cactus'
Articles of Incorporation, changing the name of Cactus to NoMatterWare, Inc. A
form of Certificate of Amendment to the Articles of Incorporation of Cactus is
attached to this Proxy Statement-Prospectus as Annex B.
<PAGE>13
Exchange of Cactus stock certificates.
AS A CACTUS SHAREHOLDER THERE IS NO NEED TO EXCHANGE YOUR STOCK CERTIFICATES FOR
NEW CERTIFICATES, EVEN AFTER THE REORGANIZATION AND CHANGE IN THE COMPANY'S
NAME. Your stock certificate will continue to represent the same number of
shares of Cactus common stock. If you prefer, after the reorganization you can
send your old stock certificate to the transfer agent, with any required
documentation, and receive a new stock certificate containing the new name of
the company.
Exchange of NoMatterWare stock certificates
for Cactus Stock certificates.
When the reorganization is completed, each certificate representing shares of
NoMatterWare common stock will be exchanged for an equal number of shares of
Cactus common stock. After the reorganization is complete, old NoMatterWare
stock certificates should be sent to the transfer agent, with any required
documentation, in exchange for new certificates for a fee of $15.00 per
transaction.
Material United States Federal Income Tax Consequences of the Reorganization.
The following are the material United States federal income tax consequences of
the reorganization. The following discussion is based on and subject to the
Internal Revenue Code of 1986, the regulations promulgated thereunder, existing
administrative interpretations and court decisions and any related laws, all of
which are subject to change, possibly with retroactive effect. This discussion
does not address all aspects of United States federal income taxation that may
be important to you in light of your particular circumstances or if you are
subject to special rules, such as rules relating to:
o shareholders who are not citizens or residents of the United States
o financial institutions
o tax exempt organizations
o insurance companies
o dealers in securities
This discussion assumes you hold your shares of NoMatterWare or Cactus capital
stock as capital assets within the meaning of Section 1221 of the Internal
Revenue Code.
Both Cactus and NoMatterWare have discussed the tax consequences of the
reorganization with their respective legal and accounting advisors. No opinion,
however, has been sought or obtained regarding material United States federal
income tax consequences of the reorganization.
NoMatterWare has determined that the reorganization will be treated for federal
income tax purposes as a reorganization within the meaning of Section 368(b) of
the Internal Revenue Code, and NoMatterWare and Cactus will each be a party to
that reorganization within the meaning of Section 368(b) of the Internal Revenue
Code.
Tax implications to Cactus shareholders.
Current shareholders of Cactus should not recognize gain or loss for United
States federal income tax purposes as a result of the reorganization.
Tax implications to NoMatterWare shareholders.
NoMatterWare shareholders should not recognize gain or loss for United States
federal income tax purposes when they exchange NoMatterWare common stock solely
for Cactus common stock pursuant to the reorganization. The aggregate tax basis
of the Cactus stock they receive as a result of the reorganization will be the
same as the aggregate tax basis in the NoMatterWare stock they surrender in the
exchange.
<PAGE>14
Tax implications to NoMatterWare and Cactus.
Cactus and NoMatterWare will not recognize gain or loss for United States
federal income tax purposes as a result of the reorganization.
THE FOREGOING DISCUSSION IS NOT INTENDED TO BE A COMPLETE ANALYSIS OR
DESCRIPTION OF ALL POTENTIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OR
ANY OTHER CONSEQUENCES OF THE REORGANIZATION.
IN ADDITION, THIS DISCUSSION DOES NOT ADDRESS TAX CONSEQUENCES WHICH MAY VARY
WITH, OR ARE CONTINGENT ON, YOUR INDIVIDUAL CIRCUMSTANCES. MOREOVER, THIS
DISCUSSION DOES NOT ADDRESS ANY NON-INCOME TAX OR ANY FOREIGN, STATE OR LOCAL
TAX CONSEQUENCES OF THE REORGANIZATION. ACCORDINGLY, YOU ARE STRONGLY URGED TO
CONSULT WITH YOUR TAX ADVISOR TO DETERMINE THE PARTICULAR UNITED STATES FEDERAL,
STATE, LOCAL OR FOREIGN INCOME OR OTHER TAX CONSEQUENCES TO YOU OF THE
REORGANIZATION.
Regulatory filings and approvals required to complete the reorganization.
Neither Cactus nor NoMatterWare is aware of any material governmental or
regulatory approval required for completion of the reorganization, other than
compliance with applicable corporate laws of Nevada.
Restrictions on sales of shares by affiliates of Cactus and NoMatterWare.
The shares of Cactus common stock to be issued in connection with the
reorganization will be registered under the Securities Act of 1933, and will be
freely transferable under the Securities Act, except for shares of Cactus common
stock issued to any person who is deemed to be an "affiliate" of either of
NoMatterWare or Cactus. Persons who may be deemed to be affiliates include
individuals or entities that control, are controlled by, are under common
control with either entity, which may include some of our officers and
directors, as well as our principal shareholders. Affiliates may not sell their
shares of Cactus common stock acquired in connection with the reorganization
except pursuant to:
o an effective registration statement under the Securities Act covering
the resale of those shares
o an exemption under Rule 144 under the Securities Act
o any other applicable exception under the Securities Act
Cactus' registration statement on Form S-4, of which this Proxy
Statement-Prospectus forms a part, does not cover the resale of shares of Cactus
common stock to be received by our affiliates in the reorganization.
Conditions to completion of the reorganization.
The companies' respective obligations to complete the reorganization and the
other transactions contemplated by the reorganization agreement are subject to
the satisfaction or waiver of each of the following conditions before completion
of the reorganization:
o Cactus' registration statement on Form S-4 must be effective;
o the reorganization agreement must be adopted by the holders of a
majority of the outstanding shares of Cactus and NoMatterWare common
stock;
o no action, suit or proceeding shall be threatened or pending which has
the effect of prohibiting completion of the reorganization
substantially on the terms contemplated by the reorganization
agreement;
o all applicable approvals and consents required to complete the
reorganization must be received, the failure of which would have a
material adverse effect on Cactus or NoMatterWare or would result in a
violation of any laws;
o the parties' respective representations and warranties must be true
and correct as of the date the reorganization is to be completed, and
must conform or comply in all material respects with all of their
<PAGE>15
obligations required by the reorganization agreement.
Termination of the reorganization agreement.
The reorganization agreement may be terminated at any time prior to completion
of the reorganization, whether before or after adoption of the reorganization
agreement by Cactus and NoMatterWare shareholders:
o by mutual consent of Cactus and NoMatterWare;
o by NoMatterWare, upon a material breach of any covenant or agreement
on the part of Cactus which is set forth in the reorganization
agreement, or if any of Cactus' representations or warranties are or
become untrue or inaccurate so that the corresponding condition to
completion of the reorganization would not be met; or
o by Cactus, upon a material breach of any covenant or agreement on the
part of NoMatterWare which is set forth in the reorganization
agreement, or if any of NoMatterWare's representations or warranties
are or become untrue or inaccurate so that the corresponding condition
to completion of the reorganization would not be met.
Extension, waiver and amendment of the reorganization agreement.
The companies may amend the reorganization agreement at any time before or after
either company's shareholders' approval of the reorganization, provided that the
amendment does not require further shareholder approval.
Operations after the reorganization.
Following the reorganization, NoMatterWare will continue its operations as a
Nevada corporation. The board of directors of Cactus will be replaced by those
of NoMatterWare. The shareholders of NoMatterWare will become shareholders of
Cactus and their rights as shareholders will be governed by Cactus' Articles of
Incorporation, as currently in effect, Cactus by-laws and the laws of Nevada.
DISSENTER'S AND APPRAISAL RIGHTS
Under Nevada law, if you are a Cactus shareholder and you comply with certain
requirements of Nevada law, you are entitled to dissenter's rights in the
reorganization. However, it is a condition of each of our obligations to
consummate the reorganization that shareholders holding no more than 5% of
Cactus' common stock exercise dissenters' rights.
You have the right to dissent to the approval of the reorganization pursuant to
Section 92A.380 of the Nevada Act and the right to be paid the "fair value" of
your shares in cash by complying with the procedures set forth in Sections
92A.420 and 92A.440 of the Nevada Act. To qualify, you must dissent with respect
to all of the shares beneficially owned by you. You may assert dissenters'
rights as to fewer than all the shares recorded in your name only if you dissent
with respect to all shares beneficially owned by any one person and notify
Cactus in writing of the name and address of each person on whose behalf you
assert dissenters' rights. If you partially dissent, your rights are determined
as if the shares as to which dissent is made and the remaining shares were
recorded in the name of different shareholders. If you are the beneficial owner
of shares, you may dissent only if the record owner consents in writing and you
give that consent to Cactus. Set forth below is a summary of the procedures
relating to the exercise of dissenters' rights. This summary does not purport to
be a complete statement of the provisions of Sections 92A.380, 92A.420 and
92A.440 of the Nevada Act and is qualified in its entirety by reference.
To assert dissenter's rights, you must:
(1) deliver to the corporation, within 20 days after the effective date of
the reorganization, written notice of your intent to demand payment
for your shares if the reorganization is effectuated; and
<PAGE>16
(2) not vote your shares in favor of the reorganization.
If the proposed reorganization creating dissenters' rights is authorized, the
corporation shall deliver a written dissenters' notice to all shareholders who
satisfied the above requirements (1)-(2). The dissenters' notice must be sent no
later than 10 days after the effectuation of the reorganization, and must:
(1) state where the demand for payment must be sent and where and when
certificates, if any, for shares must be deposited;
(2) inform the holders of shares not represented by certificates to what
extent the transfer of the shares will be restricted after the demand
for payment is received;
(3) supply a form for demanding payment that includes the date of the
first announcement to the news media or to the shareholders of the
terms of the proposed action and requires that the person asserting
dissenters' rights certify whether or not he acquired beneficial
ownership of the shares before that date;
(4) set a date by which the corporation must receive the demand for
payment, which may not be less than 30 nor more than 60 days after the
date the notice is delivered;
(5) be accompanied by a copy of Sections 92A.300 to 92A.500.
A shareholder to whom a dissenters' notice is sent must:
(1) demand payment;
(2) certify whether he acquired beneficial ownership of the shares before
the date required to be set forth in the dissenters' notice for this
certification; and
(3) deposit his certificates, if any, in accordance with the terms of the
notice.
A shareholder who demands payment and deposits his certificates, if any, before
the proposed reorganization occurs retains all other rights of a shareholder
until those rights are canceled or modified by the taking of the proposed
reorganization. The shareholder who does not demand payment or deposit his
certificates where required is not entitled to payment for his shares.
Within 30 days after receipt of a demand for payment, Cactus shall pay each
dissenter who complied with (1)-(3) above the amount the company estimates to be
the fair value of the shares, plus accrued interest.
If you withdraw the written demand to be paid the fair value of your shares, or
if the reorganization is abandoned or terminated, or if a court determines that
the holders of Cactus common stock are not entitled to receive payment in
exchange for shares, or if you otherwise lose your dissenter's rights, then you
will be reinstated to all of your rights as a holder of Cactus common stock as
of the filing of your written objection.
A dissenter may notify Cactus in writing of his own estimate of the fair value
of his shares and the amount of interest due, and demand payment of his
estimate, or reject the company's offer and demand payment of the fair value of
his shares and interest due, if he believes that the amount paid is less than
the fair value of his shares or that the interest due is incorrectly calculated.
A dissenter waives his right to demand payment unless he notifies Cactus of his
demand in writing within 30 days after Cactus made or offered payment for his
shares.
If a demand for payment remains unsettled, Cactus shall commence a proceeding
within 60 days after receiving the demand and petition the court to determine
the fair value of the shares and accrued interest. If Cactus does not commence
the proceeding within the 60-day period, it shall pay each dissenter whose
demand remains unsettled the amount demanded.
<PAGE>17
BUSINESS OF CACTUS
Historical overview of Cactus.
Cactus Spina, Inc., a Nevada corporation, was incorporated on April 16, 1996.
Cactus has no subsidiaries and no affiliated companies. Cactus' executive
offices are located at 3930 Howard Hughes Parkway, Suite 100, Las Vegas, Nevada
89107.
Cactus has not been subject to bankruptcy, receivership or any similar
proceedings and is a corporation in good standing in the State of Nevada.
MANAGEMENT
Our officers and directors and their ages are as follows:
<TABLE>
<S> <C> <C> <C>
Position
Name Elected First Year Age
------------------------- ------------------------------------------- ---------------- ------
James Pitochelli President, Secretary/Treasurer, and 1996 62
Director
</TABLE>
Business experience of officers and directors.
James Pitochelli - President, Secretary/Treasurer, Director
James Pitochelli has been President of the Company since its founding in 1996.
Also since 1998 he has been President of Professional Corporate Advisors and
Dawson/James, Ltd. both of which incorporate companies domestically and abroad
and act as consultants to these companies for financing and regulatory
compliance. From 1996 to 1997 he was house counsel to Travelers Ltd. From 1995
to 1996 he was President of the London Group, a mortgage banking firm.
Remuneration.
No remuneration, either direct or indirect, has been paid to any officer or
director of Cactus since its inception.
BUSINESS OF NOMATTERWARE
Introduction.
NoMatterWare (hereinafter referred to sometimes as "we" or "our") has designed
and now sells a proprietary advanced set of web site construction and
maintenance tools. With these tools any small business or nonprofit
organization can own and manage a fully interactive, professional looking
Internet presence with no restrictions on size, verify and accept credit cards
in real time, and make any changes they want to the content, at any time of the
day from any computer connected to the Internet - all without needing to
purchase any software, install any software, or utilize a professional web
developer. NoMatterWare also provides software to interface the web site with
many of the business' other activities: accounting, contact management, human
relations, computer local network and point of sale systems (POS). The
NoMatterWare product places into the hands of the small business entrepreneur a
turnkey e-commerce Internet presence for as little as $30 per month. Before our
product was available a custom web site with equivalent capability would cost
hundreds of thousands of dollars.
Our Industry.
Our potential clients are all of the small and medium size businesses in the
United States and Canada, and eventually the whole world. The US alone has over
20 million small and medium size businesses and nonprofit organizations. All of
these businesses need web sites to compete in the modern world of commerce.
<PAGE>18
Our Company.
NoMatterWare offers small to medium size businesses easy to use tools at
affordable prices to design and use web sites for e-commerce.
NoMatterWare is a Calgary, Canada, based company, which is among the first to
provide a set of web site construction and maintenance tools that any small
business or nonprofit organization can use to create, own and manage a fully
interactive, professional looking Internet presence with no restrictions on
size. The customer can verify and accept credit cards in real time, and make
virtually any changes they want to the content, at any time of the day from any
computer connected to the Internet - all without needing to purchase any
software, install any software, or utilize a professional web developer. This
service places into the hands of the small business entrepreneur a turn key
e-commerce Internet presence for as little as $30 per month.
Since its founding in April 1999, NoMatterWare has developed and tested several
of 22 tools in 40 styles to enable the user to customize his site and Internet
operations to satisfy his businesses own unique needs. Over one thousand
customers are already using our web tools, and through agreements with Hewlett
Packard, some moderate size ISPs and others, we expect to grow rapidly.
Our Market.
Our initial market is many of the 20 million small and medium size businesses in
the United States and Canada. The major thrust is to reach these businesses by
branding many companies that already have large customer bases.
Our Marketing Strategy.
It is the intent of NoMatterWare to become the de facto small/home-based
business commerce solution. By using the Internet not only as a web-based
marketing solution and e-commerce entry point, but also as a conduit for the
integrated provision of other optional business functions such as accounting,
contact management, resume tracking, and point of sale capability, NoMatterWare
can provide an extremely cost effective way of allowing the small business owner
to efficiently manage its day to day activities.
This goal will be accomplished by branding the NoMatterWare software under the
names of Internet service providers (ISPs), franchisers, financial institutions,
and other large organizations that wish to provide electronic commerce solutions
to their small business customers. By partnering with companies, NoMatterWare
will quickly establish a substantial and powerful marketing presence.
Competition.
Our competition consists of companies that provide expensive custom web site
designs, those that provide inexpensive cookie-cutter web sites, and those who
provide tools for medium priced web sites. The first two categories are not
direct competition since they satisfy the needs of large companies that can
afford heavy investments into their web sites, or small companies who will not
pay much for the very limited capabilities that they believe they need. Our
competitors are those who cater to the companies that want the Internet to
materially improve their business, but cannot afford a large investment. These
competitors typically sell Internet development tools and services for a few
hundred to a few thousand dollars. We make extensive Internet tools that are
easy to use available for as little as $30 per month. Typical of these products
and companies are: EC BUILDER PRO, GO BIZ GO, E-MERGE ALLIANCE,
QUIXTAR/SHOCKWAVE, NETOPIA, and BIGSTEP.
Our Products.
Our products are a set of construction and maintenance tools that any small
business or nonprofit organization can use to create, own and manage a fully
interactive, professional looking Internet presence. There are no restrictions
on size. Capability is offered to verify and accept credit cards in real time.
The customer can make virtually any changes they want to the content, at any
time of the day, from any computer connected to the Internet. All of this can be
accomplished without the customer needing to purchase any software, install any
software, or utilize a professional web developer. This service places into the
hands of the small business entrepreneur a turnkey e-commerce Internet presence
for as little as $30 per month.
<PAGE>19
There are already 22 different "intelligent" business components in the
NoMatterWare software with over 40 different styles a business may choose from,
complete with graphics and animated buttons. Some of these components permit the
integrated provision of other optional business functions such as accounting,
contact management, resume tracking, and point of sale capability.
Through some very simple steps a person using NoMatterWare's "web wizard" can
build a web site in a few minutes. The customer will require any prior knowledge
of web site design or programming, and will not be required to do anything other
than click a few buttons, and type what they want to say in their web site.
NoMatterWare software can be sold as a branded product under the names of
Internet service providers (ISPs), franchisers, financial institutions, and
other large organizations that wish to provide electronic commerce solutions to
their small business customers. NoMatterWare can be easily modified to
seamlessly blend in with another "alliance" web site in less than an hour. It
can be completely retrofitted to look and feel like a part of that "alliance"
site.
The following is our pricing structure for the NoMatterWare components:
<TABLE>
<S> <C>
Price Point Price
---------------------------------------------------------------- ----------------------------------------------------
Base NoMatterWare Web Presence $29.95 per month for unlimited component
use, billed to credit card.
Web Presence + hosting + 1 Email Address. $49.95 per month, billed to credit card.
WebPresence + Hosting + 1 Email Address + turnkey e-commerce $99.95 per month on a minimum 18 month contract, billed to
solution, and own merchant account.
Sale of Entire software packages to companies directly. $20,000 per installation
</TABLE>
Future Products.
We intend to keep developing and adding tools to our e-commerce small building
software. One such tool will be a user friendly POS system, which has the
ability to seamlessly tie both the business's web site and product database to
one location. It is the intent of the company to be able to provide a full small
business solution through a web browser, and effectively become a "one stop
shop" for a small business.
Our Operations.
Our office is in Calgary, Alberta, Canada. This location is on a main fiber
optic trunk of Metronet Corporation, and we have been able to secure an
extended, very inexpensive dedicated T1 Internet connection and a 10-megabit
fiber connection right into our server room. Additional extra Internet bandwidth
is readily available when we need it.
All development has takes place here in Canada which allows us to substantially
reduce cost, since programming labor is considerably cheaper in Canada than in
the United States, and the currency exchange rate provides further savings.
We keep operating costs low by providing a high degree of automation and by
providing a user friendly capability to let our customers structure and maintain
their own web sites.
In order to remain at the leading edge of Internet business innovation we
subcontract development to Churchill Consulting Services. They, in turn, use the
most leading edge tools available, such as MS SQL Server 7.0.
Through our marketing division we will have in place regular surveys polling our
customers to find out how their businesses are evolving, and how we can deliver
the best solution to them. Results of those surveys are forwarded to Churchill
Consulting Services to enable them to continually improve our products.
<PAGE>20
We have our own highly skilled testing and documentation staff to extensively
test our products before they are released. Once released and implemented the
same team is available to answer questions, evaluate problems and fix bugs. With
this team's assistance we also provide a comprehensive on-line help system for
our customers.
To further support our customers we have partnered with DataCom, one of the
largest inbound/outbound call centers in Canada. With more than 250 stations in
Toronto and another 150 in Montreal, DataCom is easily able to handle all of the
support and customer follow-up calls required by NoMatterWare customers. We are
also in the process of partnering with numerous other call centers for more
internet-centric styles of support and marketing.
Government Regulation.
There are currently no government regulations limiting or restricting the sale
or leasing of our products, Internet software.
Our Employees.
We currently have 14 employees, all of which are full time. 4 are management,
and 3 are technical.
Our Facilities.
We currently rent 2,800 square feet in a downtown Calgary high rise tower at 717
7th Avenue SW, Calgary, Alberta, Canada T2P 0Z3. Our rental rate is $4,500
Canadian per month on a lease through July 2001.
Our Corporate Growth Strategy.
It is our philosophy to ensure an adequate return on investment on every
advertising dollar spent, and push the brunt of the work into the hands of the
end user, while at the same time carefully ensuring that their tasks are made as
efficient as possible. Based on current partnership projections, and the
automation of specific tasks, NoMatterWare should be able to operate with a
staff of approximately 60 people, successfully supporting over 100,000 customers
by the end of next year.
There are a number of reasons why this model is feasible:
(1) All email processes are automated. Support Staff will be able to
correspond with over 5000 people at a time. Such efforts have been
proven to generate an average of 600 return email messages with the
bulk (about 350) being the first day. The staff should be able to
return correspondence to at least 500 email messages a day.
(2) Support calls will be handled by DataCom's telemarketers.
(3) Marketing and business development staff's focus is on ISP's and
larger institutions as distribution channels, rather than individual
businesses.
(4) Our current software development methodology achieves a turnaround
time of only 30-45 days on new products and services. The team is very
tightly integrated and the development methodologies are strictly
adhered to. The team currently consists of 1 primary and 1 secondary
developer. The secondary acts as lead analyst and DBA. There is one
tester, one documenter, and one graphic artist. Our current
methodology has resulted in an average 35 man-hour turnaround time for
new components added to the software.
(5) All administration is done through automated processes on the servers.
All credit card transaction receipts are validated by software, and
all revenue is automatically deposited into the NoMatterWare bank
account. There is no need for invoicing, as all transactions are
conducted via credit card.
In running with such a lean staff, all marketing processes must be efficient,
and will be established in the following fashion:
<PAGE>21
o Early Stage (establishing the foundation) During this stage, the
primary focus will be on establishing a solid client base, and degree
of profitability. Initial cost analysis indicates that our break-even
point is approximately 2000 active customers. All early stage
marketing will focus on the establishment of strategic alliances with
such companies as Internet Service Providers, Web Developers, and
other firms in a position to actively promote NoMatterWare to their
large base of customers. Our recent partnership with CyberSurf
Corporation, and commencement of negotiation with Webtransact.net are
examples of such a strategy. By securing alliances with both
companies, we can anticipate securing a customer base of over 18,000
small businesses within the next few months - some at a wholesale
price, and some at full retail price.
NoMatterWare has also begun the development of a sales and marketing
system, as well as a full on line help and bug tracking system. At
this time the bug tracking system is in place, and has been used
extensively for testing of the software, while the sales and help
systems are currently at the design stages.
o Middle Stage (establishment of distribution channels and targeting
acquisitions/reorganizations) At this stage, the company will continue
to build on its established relationships and marketing successes, by
rolling out similar partnerships and strategies in other major
centers. We will also seek a partnership with a major computer company
such as Hewlett Packard, both for the equipment required to run our
software, and also the provision by NoMatterWare of a branded solution
for their e-commerce customers. In addition, we expect to incorporate
NoMatterWare into the Milinx Business Builder Toolkit, for a company
that already has over 30,000 customers on line.
As we continue to build our on-line corporate presence and increase
our revenue stream, we will begin to address the acquisition and
development of complimentary products and services to further enhance
our distribution channels, and strengthen our market position. We
currently have our eye on Internet Secure for our e-commerce solution,
and are looking for an email/fax company for another facet of our
business. We will also target franchise companies for the provision of
NoMatterWare based web presences for their franchisees. This marketing
strategy will be centered around the premise that the Franchiser
recognizes that a local web presence for each franchisee is important,
yet he wants to control the look and feel of the site and the content
related to the franchise products and services.
It is also our intent at this stage to begin the development and
roll-out of an advanced business search engine designed to wrap itself
right around the NoMatterWare software. Conceptual design of the
search engine is already underway.
As NoMatterWare becomes a more diverse and well-rounded Internet
company, the need will arise for the creation of brand awareness. At
this stage, the company will also begin a promotional campaign, by
sponsoring events, advertising on TV, radio, and billboard, and also
diversifying into other markets for name branding.
o Late Stage (corporate acquisition / system enhancements) At this stage
competitors will have again begun to enter the picture, and
NoMatterWare will be required to establish and maintain product
differentiation. This will be done through the staged acquisition of
complimentary products and services as well as continually enhancing
the system to offer a wider, more robust range of services.
The company will also entertain the possibility of franchising its
services to small businesses in communities where there are currently
no partnerships with Internet Service Providers.
<PAGE>22
MANAGEMENT
Our officers and directors and their ages are as follows:
Position
Name Elected First Year Age
----------------------- ------------------------------ --------------- -------
Brad Churchill President, Chairman 1999 33
Lise Bradley Vice President, Director 1999 41
Tom Milne Chief Financial Officer 2000 57
Bill Burns Chief Operations Officer 2000 54
Denice Hansen Marketing Director 2000 38
Business experience of officers and directors.
Brad Churchill - President
Also the founder and a Director of Churchill Consulting Services Inc., Brad is
intensely driven and brings to the table a very rare combination both marketing
savvy and programming expertise. Prior to becoming involved in the technology
industry Mr. Churchill spent 8 years in various marketing and promotion
positions, which included time in the real estate industry as a licensed
Realtor.
For the past 6 years he has been solely involved in the information technology
industry and has developed solid skills using high-end corporate development and
database tools such as PowerBuilder, Cold Fusion, Sybase, Oracle, and SQL
Server. He has written system development and project management methodologies,
and has been contracted by some of the largest engineering and oil and gas
companies in Canada to use his expertise for guidance with their technical
strategies, and to conduct seminars on optimization of large-scale corporate
software systems. Mr. Churchill is also regularly called upon to teach at the
University of Calgary and Southern Alberta Institute of Technology.
Mr. Churchill has accepted the position of President of NoMatterWare, and will
act in that capacity, while remaining on the board of directors of Churchill
Consulting Services Inc., as a significant shareholder.
Lise Bradley - Vice President
As Vice President, Ms. Bradley has been with NoMatterWare from the beginning and
brings to the table a strong set of skills and ability. Ms. Bradley's experience
comes from over 14 years as a senior marketing and sales representative.
NoMatterWare accredits Ms. Bradley's experience as a licensed counselor in the
medical industry for her ability to successfully assess personalities in the
existing business market and build strong relationships and partnerships. This
unique combination of sales and counseling experience gives Ms. Bradley a
considerable edge when stepping into any presentation or negotiation.
Bill Burns - Chief Operations Officer
An excellent addition to our team, this former National Advertising Manager for
Sun Media brings a wealth of Fortune 1000 contacts and boardroom experience to
the table. Mr. Burns has over 20 years of experience in the marketing and
promotions area, and will be officially starting with the company in the middle
of June 2000.
Tom Milne - Chief Financial Officer
Bringing over 20 years of accounting/auditing experience to the table, along
with tried and true experience with the financing of public companies, Mr. Milne
is a valuable asset to the corporation.
Mr. Milne currently sits on the board of directors of a number of private and
public companies, is actively involved in the financial management of Alberta
Theatre Projects, and has been the head controller of Nova Chemicals Ltd., one
of the largest petroleum-based chemical production companies in the world.
Denice Hansen - Marketing Director
Formerly of the Calgary Sun daily newspaper, Mrs. Hansen was the top commission
producer for advertising sales over and over again, winning numerous awards for
excellence in the sales field, as well as tremendously increasing advertising
revenue in the newspaper. In the short time Mrs. Hansen has been with the
<PAGE>23
company, she has opened many doors to companies that we could not previously
secure.
Executive Compensation
Summary Compensation Table
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
Annual Compensation Long-Term Compensation Awards
----------------------------------------------- -------------------------------------------
Name and Year Salary($) Bonus($) Other($) Securities Compensation All Other
Other Principal Underlying ($) Awards
Position Options
------------------------------- -------- ------------- ----------- ----------- -------------- ---------------- -------------
Brad Churchill, Pres 2000 $63,140 -0- -0- -0- -0- -0-
Lise Bradley, VP 2000 $59,008 -0- -0- -0- -0- -0-
</TABLE>
Number of Stockholders
As of June 30, 2000, there were 242 stockholders of record who held shares of
NoMatterWare common stock and as of July 14, 2000, there were 36 stockholders of
record who held shares of Cactus common stock.
PRINCIPAL STOCKHOLDERS OF NOMATTERWARE
The following table sets forth certain information known by NoMatterWare
regarding the beneficial ownership of common stock as of July 14, 2000.
o each person known by NoMatterWare to be the beneficial owner of more
than 5% of its outstanding shares of common stock;
o each director of NoMatterWare;
o each executive officer of NoMatterWare; and
o all directors and executive officers of NoMatterWare as a group.
Unless otherwise indicated, the persons or entities listed below have sole
voting and investment power with respect to all shares of common stock owned by
them.
Name of Shares Owned Percent of
Beneficial Owner Beneficially (1) Class*
--------------------------------- ----------------------- ---------------
Brad Churchill 1,477,500 28.0%
Lise Bradley 450,000 8.5%
Tom Milne 2,000 --
Kurt Tosczak 1,477,500 28.0%
All officers and directors 1,929,500 36.5%
as a group (3 persons)
-------------------------
* Percent of class based upon 5,280,582 shares outstanding on July 14, 2000.
(1) The term beneficial ownership with respect to a security is defined by
Rule 13d-3 under the Securities Exchange Act of 1934 as consisting of
sole or shared voting power (including the power to vote or direct the
vote) and/or sole or shared investment power (including the power to
dispose or direct the disposition) with respect to the security
through any contract, arrangement, understanding, relationship or
otherwise. Unless otherwise indicated, beneficial ownership is of
record and consists of sole voting and investment power.
PRINCIPAL STOCKHOLDERS OF CACTUS
The following table sets forth certain information known by Cactus regarding the
beneficial ownership of common stock as of July 14, 2000.
<PAGE>24
o each person known by Cactus to be the beneficial owner of more than 5%
of its outstanding shares of common stock;
o each director of Cactus;
o each executive officer of Cactus; and
o all directors and executive officers of Cactus as a group.
Unless otherwise indicated, the persons or entities listed below have sole
voting and investment power with respect to all shares of common stock owned by
them.
Name of Shares Owned Percent of
Beneficial Owner Beneficially (1) Class*
--------------------------------------- ----------------------- ---------------
Jim Pitochelli 50,000 5.0%
GCI Investments, Ltd. 254,000 25.4%
Foo Funds, Inc. 254,000 25.4%
All officers and directors 50,000 5.0%
as a group (1 person)
-------------------------
* Percent of class based upon 1,000,000 shares outstanding on July 14, 2000.
(1) The term beneficial ownership with respect to a security is defined by Rule
13d-3 under the Securities Exchange Act of 1934 as consisting of sole or
shared voting power (including the power to vote or direct the vote) and/or
sole or shared investment power (including the power to dispose or direct
the disposition) with respect to the security through any contract,
arrangement, understanding, relationship or otherwise. Unless otherwise
indicated, beneficial ownership is of record and consists of sole voting
and investment power.
COMPARISON OF RIGHTS OF HOLDERS OF
CACTUS CAPITAL STOCK AND
NOMATTERWARE CAPITAL STOCK
This section describes certain differences between the rights of holders of
Cactus common stock and NoMatterWare common stock. It will also discuss the
rights of the holders of NoMatterWare preferred stock which, to the extent
possible, will be equal to the rights of current holders of Cactus preferred
stock. While this description covers the material differences between the two,
this summary may not contain all of the information that is important to you.
You should carefully read this entire document and the other documents referred
to for a more complete understanding of the difference between being a
shareholder of Cactus and being a shareholder of NoMatterWare.
Cactus shareholders are governed by Cactus' Articles of Incorporation, as
currently in effect, and Cactus' Bylaws, both of which adhere to the
requirements of Nevada law as stipulated in the Nevada Business Corporation Act
(the "Nevada Act"). After completion of the reorganization, NoMatterWare
shareholders will become shareholders of Cactus. As a Cactus shareholder, your
rights will be governed by Cactus' Articles of Incorporation and Cactus' Bylaws,
both of which adhere to the requirements of Nevada law.
Classes of Common Stock of Cactus and NoMatterWare
Cactus has one class of common stock, of which there are 100,000,000 authorized
shares of voting common stock, $.001 par value. NoMatterWare has one class of
common stock which consists of 10,000,000 authorized shares of voting stock,
$.001 par value.
Stock Options and Warrants
At present, neither NoMatterWare nor Cactus has any options or warrants
outstanding.
<PAGE>25
Dividends
The board of directors of Cactus and NoMatterWare may, from time to time at any
regular or special meeting, declare and each company may pay dividends on its
outstanding shares in the manner, and upon the terms and conditions provided by
law and the Articles of Incorporation. Dividends may be paid in cash, in
property or in shares of the capital stock. Before payment of any dividend,
there may be set aside out of any funds available for dividends such sum as the
directors of Cactus think proper as a reserve or reserves to meet contingencies
or for such other purpose as the directors shall think conducive to the
interests of the corporation.
Voting Rights
At any Cactus meeting, only business specified in the notice of the meeting or
otherwise directed by the board of directors may be transacted. As a shareholder
of Cactus, each outstanding share entitled to vote shall be entitled to one vote
upon each matter submitted to a vote at a meeting of the shareholders.
At all meetings of shareholders of Cactus, a shareholder may vote in person or
by proxy executed in writing by the shareholder or by his duly authorized
attorney in fact. Such proxy shall be filed with the Secretary of the
corporation before or at the time of the meeting. Under Nevada law, no such
proxy is valid after the expiration of 6 months from the date of its creation.
A majority of the outstanding shares of Cactus entitled to vote, represented in
person or by proxy, shall constitute a quorum at any meeting of shareholders.
Number of Directors, Quorum
NoMatterWare's board of directors currently consists of three (3) directors. The
Bylaws provide that the number of directors of NoMatterWare shall be fixed from
time to time by resolution of the board of directors. Cactus' board of directors
currently consists of one (1) director. The number of Cactus' directors may not
be less than one (1) and not more than five (5), which number will be set by the
board of directors. The number of directors may be changed by a duly adopted
amendment to Cactus' Bylaws by the affirmative vote of holders of a majority of
the outstanding shares or by a majority vote of the entire board of directors.
Under Nevada law, a majority of the full board of directors shall constitute a
quorum for the transaction of business unless a greater number is required by
the Articles of Incorporation or the Bylaws. 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.
Removal of Directors
Under Cactus' Bylaws, the holders of two-thirds of the outstanding shares of
stock entitled to vote may at any time peremptorily terminate the term of office
of all or any of the directors by vote at a meeting called for such purpose or
by a written statement filed with the Secretary or, in his absence, with any
other officer. Such removal shall be effective immediately, even if successors
are not elected simultaneously and the vacancies on the board of directors
resulting therefrom shall only be filled by the shareholders.
Filling Vacancies of the Board of Directors
Under both NoMatterWare's and Cactus' Bylaws, a majority of the remaining
members of the board of directors may fill the vacancy or vacancies until the
successor or successors are elected at a shareholders' meeting.
Interested Directors
Transactions between NoMatterWare and Cactus and interested directors are not
voidable by NoMatterWare or Cactus and those directors are not liable to
NoMatterWare or Cactus for any profit realized pursuant to such transaction if
the nature of the interest is disclosed at the first opportunity at a meeting of
directors, and a majority of disinterested directors or shareholders entitled to
vote ratify the transaction.
<PAGE>26
Amendment of Articles of Incorporation
Amendments to both NoMatterWare's and Cactus' Articles of Incorporation require
the affirmative vote of a majority of the outstanding shares entitled to vote
thereon.
Amendment of Bylaws
The NoMatterWare and Cactus Bylaws may be amended by a majority vote of all the
shares issued and outstanding and entitled to vote at any annual or special
meeting of the shareholders, provided notice of intention to amend shall have
been contained in the notice of the meeting. In addition, the board of directors
by a majority vote of the whole board at any meeting may amend the Bylaws,
including Bylaws adopted by the shareholders, but the shareholders may from time
to time specify particulars of the Bylaws which shall not be amended by the
board.
Shareholder Right to Inspect Books and Records
Cactus shall keep books and records available at its registered office for its
shareholders to inspect including: a certified copy of its Articles of
Incorporation and Bylaws and all amendments thereto as well as a stock ledger
containing the names of shareholders and the number of shares held by each. In
order to be entitled to inspect the books and records of Cactus during normal
business hours, a person must give no less than five days written notice and:
(1) have been a shareholder of record of Cactus for at least six months
immediately preceding the demand or (2) hold, or be authorized in writing by the
holders of, at least five percent of Cactus' outstanding shares.
Derivative Actions
NoMatterWare and Cactus shareholders do not have a direct and individual right
to enforce rights which could be asserted by the corporation, but may do so
derivatively on behalf of the corporation. Pursuant to Nevada law, upon
compliance with certain requirements, a shareholder may institute a derivative
suit in the right of the corporation against the present or former officers or
directors of a corporation because the corporation refused to enforce rights
that could be asserted by the corporation, if he or she was a shareholder at the
time of the transaction complained of, or if his or her stock thereafter
devolved upon him or her by operation of law from a person who was a shareholder
at that time.
Indemnification of Directors and Officers
The Nevada Act permits a corporation to indemnify its directors or officers in
respect of any loss arising or liability attaching to them by virtue of any
negligence, default, breach of duty or breach of trust committed in good faith.
NoMatterWare's and Cactus' Bylaws provide that every person who is or was a
director or officer shall be indemnified by the corporation against any
liability, judgment, fine, amount paid in settlement, cost and expense
(including attorneys' fees) asserted or threatened against and incurred by such
person in his capacity as or arising out of his status as a director or officer
of the corporation.
The Bylaws require Cactus to advance the expenses of directors and officers
incurred in defending a civil or criminal action, suit, or proceeding upon the
receipt of an undertaking by or on behalf of the director or officer to repay
the amount if it is ultimately determined by a court that he is not entitled to
be indemnified by the corporation.
In addition, Nevada law allows, and the Articles of Incorporation of Cactus
provide that no director or officer of Cactus shall have any personal liability
for damages for breach of his fiduciary duty except for acts or omissions
involving intentional misconduct, fraud or a knowing violation of law or
payments of dividends in violation of Nevada law.
Shareholder Liability
Shareholders of NoMatterWare and Cactus shall be under no obligation to the
corporation or its creditors or be individually liable for any liabilities or
debt with respect to the shares held other than the obligation to pay to the
corporation the full consideration for which said shares were issued.
<PAGE>27
Business Combinations
Under the Nevada Act, a "Business Combination" includes the following
transactions:
o any reorganization or consolidation with an interested shareholder or any
affiliate of an interested shareholder;
o any sale, lease, exchange, mortgage, pledge, transfer, or other disposition
to or with an interested shareholder or any affiliate of an interested
shareholder of assets having an aggregate market value equal to 10% or more
of the aggregate market value of all the assets of the corporation;
o any issuance or transfer of any stock, which has a market value equal to 5%
or more of the market value of all the outstanding stock, to any interested
shareholder or any affiliate of an interested shareholder;
o adoption of any plan for the liquidation or dissolution of the corporation
proposed by an interested shareholder or an affiliate of an interested
shareholder;
o any reclassification of securities, recapitalization, reorganization or
consolidation with any subsidiary, or any other transaction which has the
effect, directly or indirectly, of increasing the proportionate share of
any class of outstanding stock owned by an interested shareholder;
o any receipt by such interested shareholder of any affiliate of an
interested shareholder of any loans, advances, guarantees, pledges, or
other financial assistance or any tax credits or other tax advantages
provided by or through the corporation.
Pursuant to Nevada law, no corporation shall engage in any business combination
with any interested shareholder of such corporation for a specified period
following such interested shareholder's stock acquisition date unless such
business combination is approved by (1) the board of directors of such
corporation prior to such interested shareholder's stock acquisition date or (2)
the affirmative vote of the holders of a majority of the outstanding voting
stock not beneficially owned by such interested shareholder or any affiliate of
such interested shareholder. In Nevada, the period is three (3) years.
In Nevada, business combinations require the affirmative vote of holders of a
majority of the outstanding voting power not beneficially owned by the
interested stockholder.
Exchange of Assets, Reorganizations and Consolidations
Under the Nevada Act, a plan of reorganization or exchange must be approved by a
majority of the voting power unless the Articles of Incorporation or the board
of directors require a greater vote.
In addition, under the Nevada Act, written notice stating the purpose, or one of
the purposes, of the meeting is to consider the plan of reorganization, together
with a copy or a summary of the plan of reorganization, shall be given to each
shareholder of record entitled to vote at the meeting within the time and in the
manner for the giving of notice of meetings of shareholders.
Dissenters' Rights
Pursuant to Nevada law, a shareholder is entitled to dissent from, and obtain
payment of the fair value of his shares in the event of any of the following
corporate actions:
o Consummation of a plan of reorganization to which the domestic corporation
is a party;
o Consummation of a plan of exchange to which the domestic corporation is a
party as the corporation whose subject owner's interests will be acquired;
and
<PAGE>28
o Any corporate action taken pursuant to a vote of the shareholders to the
extent that the articles of incorporation, Bylaws or a resolution of the
board of directors provides that voting or nonvoting shareholders are
entitled to dissent and obtain payment for their shares.
LEGAL OPINION
The validity of the shares of Cactus common stock offered by this Proxy
Statement-Prospectus will be passed upon by the Law Offices of William B.
Barnett, 15233 Ventura Boulevard, Suite 410, Sherman Oaks, California 91403,
counsel to Cactus.
EXPERTS
Grant Thorton, LLP, chartered accountants, have audited the consolidated balance
sheet of NoMatterWare and subsidiaries as of April 30, 2000, and the related
consolidated statements of operations, and cash flows for the two years ended
December 31, 1999. These audited financials for NoMatterWare and subsidiaries
are included as pages F-8 to F-15 of this Proxy Statement-Prospectus. These
consolidated financial statements are included herein in reliance on their
reports, given on their authority as experts in accounting and auditing.
Michael A. Segelstein, independent certified public accountants, have audited
the balance sheet of Cactus Spina, Inc., as of April 30, 2000, and for the years
ended December 31, 1999 and 1998, and the related consolidated statements of
operations, stockholders' equity and cash flows as of April 30, 2000, and for
the years ended December 31, 1999 and 1998. These consolidated financial
statements are included herein in reliance on the reports of Michael A.
Segelstein given on their authority as experts in accounting and auditing. Grant
Thornton LLP, Chartered Accountants, have audited the consolidated balance sheet
and the consolidated statements of operations and stockholders' deficiency and
cash flows for the year ended April 30, 2000. These consolidated financial
statements are included herein in reliance on the reports of Grant Thornton LLP
given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
Cactus has filed a registration statement on Form S-4 under the Securities Act
with the Securities and Exchange Commission with respect to Cactus' common stock
to be issued to NoMatterWare shareholders in the reorganization. This Proxy
Statement-Prospectus constitutes the prospectus of Cactus filed as part of the
registration statement. This Proxy Statement-Prospectus does not contain all of
the information set forth in the registration statement because certain parts of
the registration statement are omitted in accordance with the rules and
regulations of the SEC. The registration statement and its exhibits are
available for inspection and copying from the Public Reference Section of the
SEC, 450 Fifth Street, N.W., Washington, D.C. 20549 or by calling the SEC at
(800) SEC-0330. The SEC maintains a Website that contains reports, proxy
statements and other information regarding each of us. The address of the SEC
Website is http://www.sec.gov.
If you have any questions about the reorganization, please call Cactus at (702)
320-1900.
THIS PROXY STATEMENT-PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO PURCHASE, THE SECURITIES OFFERED BY THIS PROXY
STATEMENT-PROSPECTUS, OR THE SOLICITATION OF A PROXY, IN ANY JURISDICTION TO OR
FROM ANY PERSON TO WHOM OR FROM WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER,
SOLICITATION OF AN OFFER OR PROXY SOLICITATION IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROXY STATEMENT-PROSPECTUS NOR ANY DISTRIBUTION OF SECURITIES
PURSUANT TO THIS PROXY STATEMENT-PROSPECTUS SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATIONS THAT THERE HAS BEEN NO CHANGE IN THE INFORMATION SET
FORTH OR INCORPORATED INTO THIS PROXY STATEMENT-PROSPECTUS BY REFERENCE OR IN
OUR AFFAIRS SINCE THE DATE OF THIS PROXY STATEMENT-PROSPECTUS. THE INFORMATION
CONTAINED IN THIS PROXY STATEMENT-PROSPECTUS WITH RESPECT TO NOMATTERWARE AND
ITS SUBSIDIARIES WAS PROVIDED BY NOMATTERWARE AND THE INFORMATION CONTAINED IN
THIS PROXY STATEMENT-PROSPECTUS WITH RESPECT TO CACTUS WAS PROVIDED BY CACTUS.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of Cactus pursuant
to the foregoing provisions or otherwise, Cactus has been advised that, in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in such act, and is therefore unenforceable.
<PAGE>F-1
CACTUS SPINA INC.
(A Development Stage Company)
BALANCE SHEET
ASSETS
<TABLE>
<S> <C> <C> <C> <C>
April 30, December 31, December 31, December 31,
2000 1999 1998 1996
--------- ------------ ----------- ------------
CURRENT ASSETS: $0 $0 $0 $0
--------- ------------ ----------- ------------
TOTAL CURRENT ASSETS $0 $0 $0 $0
--------- ------------ ----------- ------------
OTHER ASSETS: $0 $0 $0 $0
--------- ------------ ----------- ------------
TOTAL OTHER ASSETS $0 $0 $0 $0
--------- ------------ ----------- ------------
TOTAL ASSETS $0 $0 $0 $0
--------- ------------ ----------- ------------
</TABLE>
See accompanying notes to financial statements & audit report
<PAGE>F-2
CACTUS SPINA INC.
(A Development Stage Company)
BALANCE SHEET
LIABILITIES AND STOCKHOLDERS EQUITY
<TABLE>
<S> <C> <C> <C> <C>
April 30, December 31, December 31, December 31,
2000 1999 1998 1996
--------- ------------- ------------ -----------
CURRENT LIABILITIES
Accounts Payable $ 0 $ 0 $ 0 $ 0
TOTAL CURRENT LIABILITIES $ 0 $ 0 $ 0 $ 0
STOCKHOLDERS EQUITY(Note 4)
Common stock, .01 par value
Authorized 25,000 shares
1,000 shares issued on
APRIL 16, 1996 $ 2,850
Common stock, $.001 par value
Authorized 100,000,000 shares
On January 12, 1999
Issued and Outstanding
1,000,000 shares $ 1,000 $ 1,000 $ 2,850
Additional paid in capital $ 1,850 $ 1,850
Net income (Loss) carryforward ($2,850) ($2,850) ($2,850) ($2,850)
--------- ------------- ------------ -----------
Total Stockholders Equity $ 0 $ 0 $ 0 $ 0
--------- ------------- ------------ -----------
TOTAL LIABILITIES AND
STOCKHOLDERS EQUITY $ 0 $ 0 $ 0 $ 0
--------- ------------- ------------ -----------
</TABLE>
See accompanying notes to financial statements & audit report
<PAGE>F-3
CACTUS SPINA INC.
(A Development Stage Company)
STATEMENT OF OPERATIONS
<TABLE>
<S> <C> <C> <C> <C> <C>
Cumulative amounts
since inception
April 16, 1996
to
April 30, December 31, December 31, December 31, April 30,
2000 1999 1998 1996 2000
----------- ----------- ------------ ------------- ------------------
Revenues $ 0 $ 0 $ 0 0 $ 0
Operating expenses $ 0 $ 0 $ 0 2,850 $ 2,850
----------- ----------- ------------ ------------- ------------------
Net income (loss)
from operations $ 0 $ 0 $ 0 ($2,850) ($2,850)
----------- ----------- ------------ ------------- ------------------
Provision for income taxes $ 0 $ 0 $ 0 $ 0
----------- ----------- ------------ ------------- ------------------
Net loss $ 0 $ 0 $ 0 ($2,850) ($2,850)
----------- ----------- ------------ ------------- ------------------
Net loss per common share $ 0.0029 $ 0.0029 $ 0.0029 $ 0.0040 $ 0.0029
----------- ----------- ------------ ------------- ------------------
Weighted average
number of shares
outstanding 333,333 1,000,000 1,000,000 712,328 809,900
----------- ----------- ------------ ------------- ------------------
</TABLE>
See accompanying notes to financial statements & audit report
<PAGE>F-4
CACTUS SPINA INC.
(A Development Stage Company)
STATEMENT OF CHANGES IN STOCKHOLDERS EQUITY
<TABLE>
<S> <C> <C> <C> <C>
Additional Accumu-
Common Stock paid-in lated
Shares Amount Capital Deficit
---------- ------------ ----------- ---------
Inception date of
April 16,1996
Common stock issued
Issued for services
rendered at $.01 par value
per share 1,000 $ 10 $ 2,840 $ 0
Net loss
December 31,1996 ($2,850)
---------- ------------ ----------- ---------
Balance, December 31, 1996 1,000 10 $ 2,840 ($2,850)
Net loss year ended
December 31, 1998 $ 0
---------- ------------ ----------- ---------
Balance, December 31, 1998 1,000 10 $ 2,840 ($2,850)
---------- ------------ ----------- ---------
Net loss year ended
December 31, 1999 $ 0
---------- ------------ ----------- ---------
Balance, December 31, 1999 1,000 10 $ 2,840 ($2,850)
---------- ------------ ----------- ---------
January 12, 1999
Change par value
From $.01 to $.001 -10 $ 10
January 12, 1999
Forward split of 1000:1 999,000
---------- ------------ ----------- ---------
Balance, December 31, 1999 1,000,000 $ 0 $ 2,850 ($2,850)
---------- ------------ ----------- ---------
Balance, April 30,2000 1,000,000 $ 0 $ 2,850 ($2,850)
---------- ------------ ----------- ---------
</TABLE>
See accompanying notes to financial statements & audit report
<PAGE>F-5
CACTUS SPINA INC.
(A Development Stage Company)
STATEMENT OF CASH FLOWS
<TABLE>
<S> <C> <C> <C> <C> <C>
Cumulative amounts
since inception
April 16, 1996
to
April 30, December 31, December 31, December 31, April 30,
2000 1999 1998 1996 2000
---------- ------------ ------------ ------------ ------------------
Cash flows from
operating activities:
net losses $ 0 $ 0 $ 0 ($2,850) ($2,850)
Adjustments to
reconcile net
loss to net cash
used in operating
activities $ 0 $ 0 $ 0 $ 0 $ 0
issuance of
common stock $ 0 $ 0 $ 0 $ 2,850 $ 2,850
---------- ------------ ------------ ------------ ------------------
Cash flows from
investing activities $ 0 $ 0 $ 0 $ 0 $ 0
---------- ------------ ------------ ------------ ------------------
Cash flows from
financing activities;
Net cash used in
financing activities $ 0 $ 0 $ 0 $ 0 $ 0
---------- ------------ ------------ ------------ ------------------
Net (decrease)
increase in cash $ 0 $ 0 $ 0 $ 0 $ 0
---------- ------------ ------------ ------------ ------------------
Cash, beginning
of period $ 0 $ 0 $ 0 $ 0 $ 0
---------- ------------ ------------ ------------ ------------------
Cash, End of period $ 0 $ 0 $ 0 $ 0 $ 0
---------- ------------ ------------ ------------ ------------------
</TABLE>
See accompanying notes to financial statements & audit report
<PAGE>F-6
Grant Thornton LLP
Chartered Accountants
Management Consultants
Canadian Member Firm of
Grant Thornton International
NoMatterWare South Inc.
(A Development Stage Company)
Consolidated
Financial Statements
April 30, 2000
<PAGE>F-7
Contents
Page
------
Auditors' Report F- 8
Consolidated Statement of Operations and Stockholders' Deficiency F- 9
Consolidated Balance Sheet F- 10
Consolidated Statement of Cash Flows F- 11
Notes to the Consolidated Financial Statements F- 12-15
<PAGE>F-8
Grant Thornton LLP GRANT THORNTON
Chartered Accountants
Management Consultants
Canadian Member Firm of
Grant Thornton International
Auditors' Report
To the Shareholders of
NoMatterWare South Inc.
We have audited the consolidated balance sheet of NoMatterWare South Inc. as at
April 30, 2000 and the consolidated statements of operations and stockholders'
deficiency and cash flows for theyear then ended. These consolidated financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform an audit to obtain reasonable
assurance whether the consolidated financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the consolidated financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation.
In our opinion, these consolidated financial statements present fairly, in all
material respects, the financial position of the Company as at December 31, 1999
and the results of its operations and cash flows for the year then ended in
accordance with generally accepted accounting principles. The accompanying
financial statements have been prepared assuming the Company will continue as a
going concern. As discussed in Note 1 to the financial statements, the Company
has no established sources of revenue and is dependent on its ability to secure
financing. This raises uncertainty of its ability to continue as a going
concern. The financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
/s/ "Grant Thornton LLP"
Calgary, Alberta
June 14, 2000
Suite 2800
500 - 4 Avenue S.W.
Calgary, Alberta
T2P 2V6
Tel: (403) 260-2500
Fax: (403) 260-2571
<PAGE>F-9
NoMatterWare South Inc.
(A Development Stage Company)
Consolidated Statement of Operations
(Amounts are expressed in U.S. Dollars)
Year Ended April 30, 2000
Revenue $ 8,399
----------
Expenses
Advertising 59,248
Depreciation 6,168
Consulting 373,297
Office 96,672
Professional fees 5,253
Rent 26,987
Wages 247,775
815,400
----------
Net loss, being deficit, end of year $(807,001)
==========
-------------------------------------------------------------------------------
Consolidated Statement of Stockholders' Deficiency
-------------------------------------------------------------------------------
(Amounts are expressed in U.S. Dollars)
Year Ended April 30, 2000
Deficit
Accumulated
Common Stock During the
------------------------------- Development
Shares Par Value Stage
--------------- ------------ -------------
Balance at
January 19, 2000
(inception) - $ - $ -
Shares issued for
acquisition of
NoMatterWare Inc.,
an Alberta
Company 5,280,592 614,105 -
Net loss - - (807,001)
--------------- ------------ -------------
Balance at
April 30, 2000 5,280,592 $ 614,105 $ (807,001)
=============== ============= ==============
See accompanying notes to the consolidated financial statements.
<PAGE>F-10
NoMatterWare South Inc.
-------------------------------------------------------------------------------
(A Development Stage Company)
Consolidated Balance Sheet
(Amounts are expressed in U.S. Dollars)
April 30, 2000
Assets
Current
Cash and cash equivalents $ 9,474
Accounts receivable 7,398
Due from shareholders (Note 3) 10,532
----------
27,404
Property and equipment (Note 4) 35,926
Software license 337,650
----------
$ 400,980
==========
Liabilities
Current
Accounts payable $ 451,859
Loan payable (Note 5) 135,734
----------
587,593
----------
Shareholders' Deficiency
Capital stock (Note 6) 614,105
Deficit accumulated during the development stage (807,001)
Foreign exchange adjustment 6,283
----------
(186,613)
----------
$ 400,980
==========
On behalf of the Board
/s/ BRAD CHURCHILL
-------------------
Brad Churchill
Director
See accompanying notes to the consolidated financial statements.
<PAGE>F-11
NoMatterWare South Inc.
--------------------------------------------------------------------------------
(A Development Stage Company)
Consolidated Statement of Cash Flows
(Amounts are expressed in U.S. Dollars)
Year Ended April 30, 2000
Increase (decrease) in cash and cash equivalents
Operating
Net loss $ (807,001)
Depreciation and amortization 6,168
Foreign currency translation adjustment 6,283
-----------
(794,550)
Change in non-cash operating working capital (Note 18) 433,928
-----------
(360,622)
-----------
Financing
Proceeds from long-term debt 135,734
Proceeds from issue of common shares 614,105
-----------
749,839
-----------
Investing
Purchase of property and equipment (42,095)
Purchase of software license (337,650)
-----------
(531,688)
-----------
Net increase in cash and cash equivalents, end of year $ 9,472
===========
See accompanying notes to the consolidated financial statements.
<PAGE>F-12
NoMatterWare South Inc.
--------------------------------------------------------------------------------
(A Development Stage Company)
Notes to the Consolidated Financial Statements
(Amounts are expressed in U.S. Dollars)
April 30, 2000
1. Nature of operations
The Company was incorporated under the laws of the State of Nevada on June 30,
1998 with the name Travis Technologies Inc. The Company did not commence
operating activities and was considered dormant.
On January 20, 2000, the Company acquired all of the issued and outstanding
shares of NoMatterWare Inc. a company registered under the laws of the Province
of Alberta, Canada, by issuing its shares for shares in NoMatterWare Inc. on a
one-for-one basis. The Company immediately changed its name to NoMatterWare
South Inc.
This acquisition has been accounted for using the "pooling of interests" method
and the results of NoMatterWare Inc.'s operations are included in these
consolidation from the date of NoMatterWare Inc.'s incorporation, May 14, 1999.
The Company has purchased certain development software as of April 30, 2000 that
does not yet have an established market. The Company's ability to continue and
discharge its liabilities in the normal course of operations depends upon
securing adequate financing and achieving profitable operations.
2. Summary of significant accounting policies
This summary of accounting policies for NoMatterWare South Inc. is presented to
assist in understanding the Company's financial statements. The accounting
policies conform to generally accepted accounting principles in the United
States and have been consistently applied in the preparation of the financial
statements. Amounts are expressed in U.S. dollars.
Principles of consolidation
The consolidated financial statements include the accounts of all companies in
which the Company has an interest, after the elimination of inter-company
transactions and balances.
Cash and cash equivalents
For the purposes of the statement of cash flows, the Company considers all cash
on hand and cash on deposit with banks and held in trust by lawyers, without
restrictions to be cash and cash equivalents.
<PAGE>F-13
NoMatterWare South Inc.
-------------------------------------------------------------------------------
(A Development Stage Company)
Notes to the Consolidated Financial Statements
(Amounts are expressed in U.S. Dollars)
April 30, 2000
2. Summary of significant accounting policies (Continued)
Use of estimates
The preparation of the financial statements in accordance with generally
accepted principles requires management to make estimates and assumptions that
affect the amounts of assets and liabilities at the date of the consolidated
financial statements and the reported amounts of revenue and expenses during the
period. Actual results could differ and affect the results reported in these
consolidated financial statements.
Financial instruments
The Company has estimated the value of its financial instruments, which include
accounts receivable, accounts payable and loans payable. The Company used
valuation methodologies and market information available as at year end and has
determined that the carrying amounts of such financial instruments approximate
fair market value in all cases.
Depreciation
Depreciation is provided over the estimated useful lives of the property and
equipment using the following methods and annual rates:
Furniture and equipment 30% declining balance
Computer hardware 30% declining balance
Leasehold improvements 5 years, straight-line
Amortization of intangibles
The software license purchased by NoMatterWare will be amortized upon the
Company commencing operations using the software application.
Translation of foreign currencies
All of the assets and liabilities of self-sustaining subsidiaries are translated
at the year end rate of exchange. Revenue and expenses are translated at the
average rate of exchange for the year. The translation adjustment is included in
the shareholders' equity on the consolidated balance sheet under the caption
"Foreign exchange adjustment".
<PAGE>F-14
NoMatterWare South Inc.
--------------------------------------------------------------------------------
(A Development Stage Company)
Notes to the Consolidated Financial Statements
(Amounts are expressed in U.S. Dollars)
April 30, 2000
3. Due from shareholder
An advance of $10,532 has been made to one of the officers of the Company, who
is also a shareholder in the Company. These advances are non-interest bearing
and have no set terms of repayment. As such, they have been included in current
assets
4. Property and equipment
Accumulated Net Book
Cost Depreciation Value
--------- ------------ ----------
Furniture and fixtures $ 22,244 $ 3,337 $ 18,907
Computers 16,069 2,410 13,659
Leasehold improvements 3,733 373 3,360
--------- ------------ ----------
$ 18,907 $13,659 $ 35,926
========= ============ ==========
5. Loan payable
Operating deficit has been partially financed by advances of $135,734 from a
Company that is controlled by the President of the Company. The loan is
non-interest bearing and unsecured. The terms of the loan call for it to be
repaid in twelve equal monthly installments, commencing upon financing
arrangements being finalized. As such, the entire balance has been included in
current liabilities.
6. Capital stock
Authorized:
The Company is authorized to issue 10,000,000 common shares with a par value of
$0.001.
Issued:
5,280,592 Common shares $ 614,105
===========
<PAGE>F-15
NoMatterWare South Inc.
-------------------------------------------------------------------------------
(A Development Stage Company)
Notes to the Consolidated Financial Statements
(Amounts are expressed in U.S. Dollars)
April 30, 2000
7. Change in non-cash operating working capital
Accounts receivable $ (7,398)
Due from shareholders (Note 3) (10,532)
Accounts payable 451,859
-----------
$ 433,928
===========
8. Related party transactions
On May 14, 1999, the Company purchased development software from a private
company controlled by the President for $337,650 consisting of cash of $168,825
and 167,000 common shares at an ascribed value of $168,825.
As part of this purchase the Company has entered into agreement to pay
maintenance fees in the amount of $18,250 plus $10 per month for each customer
hosted on the related company's server. During the year the Company paid
$227,100 in maintenance fees which is included in consulting fees and at April
30,2000 the amount of $311,781, relating to the purchase of the software license
and maintenance fees, owing to the related party is included in accounts payable
9. Subsequent events
On June 6, 2000 NoMatterWare South Inc. changed its name to NoMatterWare Inc.
<PAGE>A-i
PLAN AND AGREEMENT OF REORGANIZATION
BETWEEN
NOMATTERWARE, INC.
AND
CACTUS SPINA, INC.
RELATING TO THE EXCHANGE OF COMMON STOCK OF
NOMATTERWARE, INC.
FOR
COMMON STOCK OF
CACTUS SPINA, INC.
DATED
APRIL 1, 2000
<PAGE>A-ii
TABLE OF CONTENTS
PLAN OF REORGANIZATION ....................................................... 1
AGREEMENT..................................................................... 1
SECTION 1 TRANSFER OF NOMATTERWARE SHARES........................ 1
SECTION 2 ISSUANCE OF EXCHANGE STOCK AND ADDITIONAL
STOCK TO NOMATTERWARE SHAREHOLDERS..................... 2
SECTION 3 CLOSING................................................ 3
SECTION 4 REPRESENTATIONS AND WARRANTIES BY NOMATTERWARE
AND CERTAIN SHAREHOLDERS............................... 5
SECTION 5 REPRESENTATIONS AND WARRANTIES BY CACTUS...............10
SECTION 6 ACCESS AND INFORMATION.................................14
SECTION 7 COVENANTS OF NOMATTERWARE..............................14
SECTION 8 COVENANTS OF CACTUS....................................16
SECTION 9 ADDITIONAL COVENANTS OF THE PARTIES....................17
SECTION 10 SURVIVIAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS..............................................18
SECTION 11 CONDITIONS PRECEDENT TO OBLIGATIONS
OF PARTIES.............................................18
SECTION 12 TERMINATION, AMENDMENT, WAIVER.........................21
SECTION 13 MISCELLANEOUS..........................................23
EXHIBIT LIST..................................................................27
SCHEDULE LIST.................................................................27
<PAGE>A-1
PLAN AND AGREEMENT OF REORGANIZATION
This PLAN AND AGREEMENT OF REORGANIZATION ("Agreement") is entered into
on this 1st day of April, 2000 by and between CACTUS SPINA, INC., a Nevada
corporation ("CACTUS") and NOMATTERWARE, INC. a Nevada corporation
("NOMATTERWARE"), and those persons listed in Exhibit A hereto, being all of the
shareholders of NOMATTERWARE who own individually at least five percent (5%) of
the outstanding stock of NOMATTERWARE and together control over 50% of the
outstanding stock of NOMATTERWARE as of the date this Agreement is executed.
PLAN OF REORGANIZATION
The transaction contemplated by this Agreement is intended to be a "tax
free' exchange as contemplated by the provisions of Sections 351 and 368(a) (1)
(B) of the Internal Revenue Code of 1986, as amended. CACTUS will acquire up to
100% of NOMATTERWARE's issued and outstanding common stock, ($0.001 par value
per share) and all warrants and options outstanding (the "NOMATTERWARE Stock" or
the "NOMATTERWARE Shares"), in exchange for approximately 5,200,000 shares of
CACTUS 's common stock, $0.001 par value per share (the "Exchange Stock") which
includes shares to be issued to finders. Upon the consummation of the exchange
transaction and the issuance and transfer of the CACTUS common stock as set
forth in Section 2 herein below, NOMATTERWARE Shareholders could hold
approximately 52% of the then outstanding common stock of CACTUS. The Exchange
Transaction will result in NOMATTERWARE becoming a wholly owned subsidiary of
CACTUS.
AGREEMENT
SECTION 1
TRANSFER OF NOMATTERWARE SHARES
1.1 All shareholders of NOMATTERWARE (the "Shareholders" or the
`NOMATTERWARE Shareholders"), as of the date of Closing as such term
is defined in Section 3 herein (the "Closing" or the "Closing Date"),
shall transfer, assign, convey and deliver to CACTUS at the date of
Closing, certificates representing approximately 100% of the
NOMATTERWARE Shares or such lesser percentage as shall be acceptable
to CACTUS, but in no event less than approximately 95% of the
NOMATTERWARE Shares. The transfer of the NOMATTERWARE Shares shall be
made free and clear of all liens, mortgages, pledges, encumbrances or
charges, whether disclosed or undisclosed, except as the NOMATTERWARE
Shareholders and CACTUS shall have otherwise agreed in writing.
ISSUANCE OF EXCHANGE STOCK AND ADDITIONAL STOCK TO NOMATTERWARE
SHAREHOLDERS
2.1 As consideration for the transfer, assignment, conveyance and delivery
of the NOMATTERWARE Stock hereunder, CACTUS shall, at the Closing
issue to the NOMATTERWARE Shareholders, pro rata in accordance with
each Shareholder's percentage ownership of NOMATTERWARE immediately
prior to the Closing, certificates for approximately 5,200,000 shares.
(The CACTUS common stock to be issued are referred to herein as the
"Exchange Stock.") The parties intend that the Exchange Stock being
issued will be used to acquire all outstanding NOMATTERWARE Shares. To
the extent that less than 100% of the NOMATTERWARE stock is acquired,
<PAGE>A-2
the number of shares issuable to those NOMATTERWARE Shareholders who
have elected to participate in the exchange described in this
Agreement (the "Exchange") shall increase proportionately.
2.2 The issuance of the Exchange Stock shall be made free and clear of all
liens, mortgages, pledges, encumbrances or charges, whether disclosed
or undisclosed, except as the NOMATTERWARE Shareholders and CACTUS
shall have otherwise agreed in writing. As provided herein, and
immediately prior to the Closing, CACTUS shall have issued and
outstanding: (I) not more than 10,000,000 shares of Common Stock; (ii)
no shares of Preferred Stock; and (iii) no options for the purchase of
common stock, except as may be set forth in Schedule 5.1(b) hereto.
2.3 None of the Exchange Stock issued or to be issued to the NOMATTERWARE
Shareholders, nor any of the NOMATTERWARE Stock transferred to CACTUS
hereunder shall, at the time of Closing, be registered under federal
securities laws but, rather, shall be issued pursuant to an exemption
therefrom and be considered "restricted stock" within the meaning of
Rule 144 promulgated under the Securities Act of 1933, as amended (the
"Act"). All of such shares shall bear a legend worded substantially as
follows:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") and are
`restricted securities' as that term is defined in Rule 144 under
the Act. The shares may not be offered for sale, sold or
otherwise transferred except pursuant to an exemption from
registration under the Act, the availability of which is to be
established to the satisfaction of the Company."
The respective transfer agents of CACTUS and NOMATTERWARE shall
annotate their records to reflect the restrictions on transfer
embodied in the legend set forth above. There shall be no requirement
that CACTUS register the Exchange Stock under the Act, nor shall
NOMATTERWARE or the Shareholders be required to register any
NOMATTERWARE Shares under the Act.
SECTION 3
CLOSING
3.1 Closing of Transaction. Subject to the fulfillment or waiver of the
conditions precedent set forth in Section 11 hereof, the Closing shall
take place on the Closing Date, via telephone conference call,
simultaneously at the offices of counsel for NOMATTERWARE and counsel
for CACTUS, at 3:00 p.m. P.S.T., or at such other time on the Closing
Date as NOMATTERWARE and CACTUS may mutually agree in writing
3.2 Closing Date. The Closing Date of the Exchange shall take place on a
date chosen by mutual agreement of NOMATTERWARE and CACTUS not later
than August 30, 2000, or such later date upon which NOMATTERWARE and
CACTUS may mutually agree in writing, or as extended pursuant to
subsection 12.1(b) herein below.
3.3 Deliveries at Closing.
(a) NOMATTERWARE shall deliver or cause to be delivered to CACTUS at
or prior to Closing:
(1) Certificates representing all shares, or an amount of shares
acceptable to CACTUS, of the NOMATTERWARE Stock as described
in Section 1, each endorsed in blank by the registered
owner;
<PAGE>A-3
(2) an agreement from each Shareholder surrendering his or her
shares agreeing to a restriction on the transfer of the
Exchange Stock as described in Section 2 hereof;
(3) a copy of a consent of NOMATTERWARE's Board of Directors
authorizing NOMATTERWARE to take the necessary steps toward
Closing the transaction described by this Agreement in the
form set forth in Exhibit B;
(4) a copy of a Certificate of Good Standing for NOMATTERWARE
issued not more than ten (10) days prior to Closing by the
Nevada Secretary of State;
(5) an opinion of the Law Offices of Robert Domico, counsel to
NOMATTERWARE, dated the Closing Date, in a form deemed
acceptable by CACTUS and its counsel;
(6) Articles of Incorporation and Bylaws of NOMATTERWARE
certified as of the Closing Date by the President and
Secretary of NOMATTERWARE;
(7) all of NOMATTERWARE's corporate records;
(8) such other documents, instruments or certificates as shall
be reasonably requested by CACTUS or its counsel.
(b) CACTUS shall deliver or cause to be delivered to NOMATTERWARE at
Closing:
(1) a copy of a consent of CACTUS 's Board of Directors
authorizing CACTUS to take the necessary steps toward
Closing the transaction described by this Agreement in the
form set forth in Exhibit C;
(2) a copy of a Certificate of Good Standing for CACTUS issued
not more than thirty days prior to Closing by the Secretary
of State of Nevada.
(3) stock certificate(s) or a computer listing from CACTUS 's
transfer agent representing the Exchange Stock to be newly
issued by CACTUS under this Agreement, which certificates
shall be in the names of the appropriate NOMATTERWARE
Shareholders, each in the appropriate denomination as
described in Section 2;
(4) an opinion of William Barnett, special counsel to CACTUS ,
dated the Closing Date, in a form deemed acceptable by
NOMATTERWARE and its counsel;
(5) Articles of Incorporation and Bylaws of CACTUS certified as
of the Closing Date by the President and Secretary of
CACTUS;
(6) executed bank forms for CACTUS bank accounts reflecting a
change in management and signatories to said bank accounts;
(7) such other documents, instruments or certificates as shall
be reasonably requested by NOMATTERWARE or its counsel.
<PAGE>A-4
3.4 Filings; Cooperation.
(a) Prior to the Closing, the parties shall proceed with due
diligence and in good faith to make such filings and take such
other actions as may be necessary to satisfy the conditions
precedent set forth in Section 11 below.
(b) On and after the Closing Date, CACTUS, NOMATTERWARE and the
Shareholders set forth in Exhibit A shall, on request and without
further consideration, cooperate with one another by furnishing
or using their best efforts to cause others to furnish any
additional information and/or executing and delivering or using
their best efforts to cause others to execute and deliver any
additional documents and/or instruments, and doing or using their
best efforts to cause others to do any and all such other things
as may be reasonably required by the parties or their counsel to
consummate or otherwise implement the transactions contemplated
by this Agreement.
SECTION 4
REPRESENTATIONS AND WARRANTIES BY
NOMATTERWARE AND CERTAIN SHAREHOLDERS
4.1 Subject to the schedule of exceptions, attached hereto and
incorporated herein by this reference, (which schedules shall be
acceptable to CACTUS), NOMATTERWARE and those Shareholders listed on
Exhibit A represent and warrant to CACTUS as follows:
(a) Organization and Good Standing of NOMATTERWARE. The Articles of
Incorporation of NOMATTERWARE and all Amendments thereto as
presently in effect, certified by the Secretary of State of
Nevada, and the Bylaws of NOMATTERWARE as presently in effect,
certified by the President and Secretary of NOMATTERWARE, have
been delivered to CACTUS and are complete and correct and since
the date of such delivery, there has been no amendment,
modification or other change thereto.
(b) Capitalization. NOMATTERWARE's authorized capital stock is
25,000,000 shares of $0.001 par value Common Stock (defined as
"NOMATTERWARE Common Stock of which no more than 5,200,000 shares
of Common Stock will be issued and outstanding prior to the
Closing Date, and held of record by approximately 250 person(s).
All of such outstanding shares are validly issued, fully paid and
non--assessable. Except as set forth in Schedule 4.1(b), no other
equity securities or debt obligations of NOMATTERWARE are
authorized, issued or outstanding.
(c) Subsidiaries. NOMATTERWARE has no subsidiaries and no other
investments, directly or indirectly, or other financial interest
in any other corporation or business organization, joint venture
or partnership of any kind whatsoever.
(d) Financial Statements. NOMATTERWARE will deliver to CACTUS, prior
to Closing, a copy of NOMATTERWARE's audited financial statements
through April 30, 2000, which will be true and complete. Other
than changes in the usual and ordinary conduct of the business
since April 30, 2000, there have been, and at the Closing Date
there will be, no material adverse changes in such financial
statements.
(e) Absence of Undisclosed Liabilities. NOMATTERWARE has no
liabilities which are not adequately reflected or reserved
against in the NOMATTERWARE Financial Statements or otherwise
reflected in this Agreement and NOMATTERWARE shall not have as of
the Closing Date, any liabilities (secured or unsecured and
whether accrued, absolute, direct, indirect or otherwise) which
were incurred after April 30, 2000, and would be individually or
in the aggregate, material to the results of operations or
financial condition of NOMATTERWARE as of the Closing Date.
<PAGE>A-5
(f) Litigation. except as disclosed in Schedule 4.1(f), there are no
outstanding orders, judgments, injunctions, awards or decrees of
any court, governmental or regulatory body or arbitration
tribunal against NOMATTERWARE or its properties. Except as
disclosed in Schedule 4.1(f), there are no actions, suits or
proceedings pending, or, to the knowledge of NOMATTERWARE,
threatened against or affecting NOMATTERWARE, any of its officers
or Directors relating to their positions as such, or any of its
properties, at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, in
connection with the business, operations or affairs of
NOMATTERWARE which might result in any material adverse change in
the operations or financial condition of NOMATTERWARE, or which
might prevent or materially impede the consummation of the
transactions under this Agreement.
(g) Compliance with Laws. To the best of its knowledge, the
operations and affairs of NOMATTERWARE do not violate any law,
ordinance, rule or regulation currently in effect, or any order,
writ, injunction or decree of any court or governmental agency,
the violation of which would substantially and adversely affect
the business, financial conditions or operations of NOMATTERWARE.
(h) Absence of Certain Changes. Except as set forth in Schedule
4.1(h), or otherwise disclosed in writing to CACTUS, since April
30, 2000, (i) NOMATTERWARE has not entered into any material
transaction; (ii) there has been no change in the condition
(financial or otherwise), business, property, prospects, assets
or liabilities of NOMATTERWARE as shown on the NOMATTERWARE
Financial Statement, other than changes that both individually
and in the aggregate do not have a consequence that is materially
adverse to such condition, business, property, prospects, assets
or liabilities; (iii) there has been no damage to, destruction of
or loss of any of the properties or assets of NOMATTERWARE
(whether or not covered by insurance) materially and adversely
affecting the condition (financial or otherwise), business,
property, prospects, assets or liabilities of NOMATTERWARE; (iv)
NOMATTERWARE has not declared, or paid any dividend or made any
distribution on its capital stock, redeemed, purchased or
otherwise acquired any of its capital stock, granted any options
to purchase shares of its stock, or issued any shares of its
capital stock; (v) there has been no material adverse change,
except in the ordinary course of business, in the contingent
obligations of NOMATTERWARE by way of guaranty, endorsement,
indemnity, warranty or otherwise; (vi) there have been no loans
made by NOMATTERWARE to its employees, officers or directors;
(vii) there has been no waiver or compromise by NOMATTERWARE of a
valuable right or of a material debt owed to it; (viii) there has
been no extraordinary increase in the compensation of any of
NOMATTERWARE's employees; (ix) there has been no agreement or
commitment by NOMATTERWARE to do or perform any of the acts
described in this Section 4.1(h); and (x) there has been no other
event or condition of any character which might reasonably be
expected either to result in a material and adverse change in the
condition (financial or otherwise) business, property, prospects,
assets or liabilities of NOMATTERWARE or to impair materially the
ability of NOMATTERWARE to conduct the business now being
conducted.
(i) Employees. There are, except as disclosed in Schedule 4.1(i), no
collective bargaining, bonus, profit sharing, compensation, or
other plans, agreements or arrangements between NOMATTERWARE and
any of its directors, officers or employees and there is no
employment, consulting, severance or indemnification
<PAGE>A-6
arrangements, agreements or understandings between NOMATTERWARE
on the one hand, and any current or former directors, officers or
employees of NOMATTERWARE on the other hand.
(j) Assets. All of the assets reflected on the April 30, 2000,
NOMATTERWARE Financial Statements or acquired and held as of the
Closing Date, will be owned by NOMATTERWARE on the Closing Date.
Except as set forth in Schedule 4.1(j), NOMATTERWARE owns
outright and has good and marketable title, or holds valid and
enforceable leases, to all of such assets. None of NOMATTERWARE's
equipment used by NOMATTERWARE in connection with its business
has any material defects and all of them are in all material
respects in good operating condition and repair, and are adequate
for the uses to which they are being put; none of NOMATTERWARE's
equipment is in need of maintenance or repairs, except for
ordinary, routine maintenance and repair. NOMATTERWARE represents
that, except to the extent disclosed in Schedule 4.1(j) to this
Agreement or reserved against on its balance sheet as of March
31, 1999, it is not aware of any accounts and contracts
receivable existing that in its judgment would be uncollectible.
(k) Tax Matters. NOMATTERWARE represents that, except as set forth in
Schedule 4.1(k) to his Agreement, all federal, foreign, state and
local tax returns, reports and information statements required to
be filed by or with respect to the activities of NOMATTERWARE
have been timely filed. Since April 30, 2000, NOMATTERWARE has
not incurred any liability with respect to any federal, foreign,
state or local taxes except in the ordinary and regular course of
business. Such returns, reports and information statements are
true and correct in all material respects insofar as they relate
to the activities of NOMATTERWARE. On the date of this Agreement,
NOMATTERWARE is not delinquent in the payment of any such tax or
assessment, and no deficiencies for any amount of such tax have
been proposed or assessed. Any tax sharing agreement among or
between NOMATTERWARE and any affiliate thereof shall be
terminated as of the Closing Date.
(1) Insurance. Set forth on Schedule 4.1(1) hereto is a list of
insurance policies currently maintained by NOMATTERWARE in full
force and effect which provide for coverage which is usual and
customary in its business as to amount and scope, and are
adequate to protect NOMATTERWARE against any reasonably
foreseeable risk of loss.
(m) Operating Authorities. To the best knowledge of NOMATTERWARE,
NOMATTERWARE has all material operating authorities, governmental
certificates and licenses, permits, authorizations and approvals
("Permits") required to conduct its business as presently
conducted. Such Permits are set forth on Schedule 4.1 (1). Since
NOMATTERWARE' s inception, there has not been any notice or
adverse development regarding such Permits; such Permits are in
full force and effect; no material violations are or have been
recorded in respect of any permit; and no proceeding is pending
or threatened to revoke or limit any Permit.
(n) Continuation of Key Management. To the best knowledge of
NOMATTERWARE, all key management personnel of NOMATTERWARE intend
to continue their employment with NOMATTERWARE after the Closing.
For purposes of this subsection 4.1(n), "key management
personnel" shall include Brad Churchill, Kurt Denice Hensen and
Lise Bradley.
(o) Books and Records. The books and records of NOMATTERWARE are
complete and correct, are maintained in accordance with good
business practice and accurately present and reflect, in all
material respects, all of the transactions therein described, and
there have been no material transactions involving NOMATTERWARE
which properly should have been set forth therein and which have
not been accurately so set forth.
<PAGE>A-7
(p) Authority to Execute Agreement. The Board of Directors of
NOMATTERWARE, pursuant to the power and authority legally vested
in it, has duly authorized the execution and delivery by
NOMATTERWARE of this Agreement, and has duly authorized each of
the transactions hereby contemplated. NOMATTERWARE has the power
and authority to execute and deliver this Agreement, to
consummate the transactions hereby contemplated and to take all
other actions required to be taken by it pursuant to the
provisions hereof. NOMATTERWARE has taken all actions required by
law, its Articles of Incorporation, as amended, or otherwise to
authorize the execution and delivery of this Agreement. This
Agreement is valid and binding upon NOMATTERWARE and those
Shareholders listed in Exhibit A hereto in accordance with its
terms. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will
constitute a violation or breach of the Articles of
Incorporation, as amended, or the Bylaws, as amended, of
NOMATTERWARE, or any agreement, stipulation, order, writ,
injunction, decree, law, rule or regulation applicable to
NOMATTERWARE.
4.2 Disclosure. At the date of this Agreement, NOMATTERWARE and those
Shareholders listed in Exhibit A have, and at the Closing Date they
will have, disclosed all events, conditions and facts materially
affecting the business and prospects of NOMATTERWARE. NOMATTERWARE and
such Shareholders have not now and will not have at the Closing Date,
withheld knowledge of any such events, conditions or facts which they
know, or have reasonable grounds to know, may materially affect
NOMATTERWARE's business and prospects. Neither this Agreement nor any
certificate, exhibit, schedule or other written document or statement,
furnished to CACTUS by NOMATTERWARE and/or by such Shareholders in
connection with the transactions contemplated by this Agreement
contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to be stated in
order to make the statements contained herein or therein not
misleading.
SECTION 5
REPRESENTATIONS AND WARRANTIES BY CACTUS
5.1 Subject to the schedule of exceptions, attached hereto and
incorporated herein by this reference, (which schedules shall be
acceptable to NOMATTERWARE), CACTUS represents and warrants to
NOMATTERWARE and those Shareholders listed in Exhibit A as follows:
(a) Organization and Good Standing. CACTUS is a corporation duly
organized, validly existing and
in good standing under the laws of the State of Nevada and has
full corporate power and authority to own or lease its properties
and to carry on its business as now being conducted and as
proposed to be conducted. Further, CACTUS is duly qualified and
licensed and in good standing as a foreign corporation in each
jurisdiction in which its ownership or leasing of any properties
or the character of its operations requires such qualification or
licensing. The Articles of Incorporation of CACTUS and all
amendments thereto as presently in effect, certified by the
Secretary of State of Nevada, and the Bylaws of CACTUS as
presently in effect, certified by the President and Secretary of
CACTUS, have been delivered to NOMATTERWARE and are complete and
correct and since the date of such delivery, there has been no
amendment, modification or other change thereto.
(b) Capitalization. CACTUS 's authorized capital stock consists of
100,000,000 shares of $.00lpar value Common Stock (defined above
as "CACTUS Common Stock"), approximately 10,000,000 of which will
be issued and outstanding (after and 10 for one forward stock
split), prior to Closing Date All authorized and/or outstanding
<PAGE>A-8
options and warrants are set forth on Schedule 5.1(b). Except as
set forth in Schedule 5.1(b), no other equity securities or debt
obligations of CACTUS are authorized, issued or outstanding and
as of the Closing, there will be no other outstanding options,
warrants, agreements, contracts, calls, commitments or demands of
any character, preemptive or otherwise, other than this
Agreement, relating to any of the CACTUS Common Stock, and there
will be no outstanding security of any kind convertible into
CACTUS Common Stock. The shares of CACTUS Common Stock are free
and clear of all liens, charges, claims, pledges, restrictions
and encumbrances whatsoever of any kind or nature that would
inhibit, prevent or otherwise interfere with the transactions
contemplated hereby. All of the outstanding shares of CACTUS
Common Stock are validly issued, fully paid and non-assessable
and there are no voting trust agreements or other contracts,
agreements or arrangements restricting or affecting voting or
dividend rights or transferability with respect to the
outstanding shares of CACTUS Common Stock;
(c) Issuance of Exchange Stock. All of the CACTUS Common Stock to be
issued to or transferred to NOMATTERWARE Shareholders pursuant to
this Agreement, when issued, transferred and delivered as
provided herein, will be duly authorized, validly issued, fully
paid and non-assessable, and will be free and clear of all liens,
charges, claims, pledges, restrictions and encumbrances
whatsoever of any kind or nature, except those restrictions
imposed by State or Federal corporate and securities regulations.
(d) CACTUS will use its best efforts to forthwith obtain any approval
of the transaction set forth in this Agreement by its outstanding
shares if required by the Nevada Revised Statutes;
(e) Neither the execution nor delivery of this Agreement nor the
consummation of the transactions contemplated hereby nor
compliance by CACTUS with any of the provisions hereof will:
(1) Violate or conflict with, or result in a breach of any
provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a
default) under, any of the terms, conditions or provisions
of the Articles of Incorporation or Bylaws of CACTUS or any
note, bond, mortgage, indenture, deed of trust, license,
agreement or other instrument to which CACTUS is a party, or
by which it or its properties or assets may be bound or
affected; or
(2) Violate any order, writ, injunction or decree, or any
statute, rule, permit, or regulation applicable to CACTUS or
any of its properties or assets.
(f) Financial Statements. CACTUS will deliver to NOMATTERWARE prior
to Closing, a copy of CACTUS 's audited Financial Statements for
the years ended December 31, 1999 and March 31, 2000,
respectively, all of which are true and complete and have been
prepared in accordance with generally accepted accounting
principles.
(g) Absence of Undisclosed Liabilities. Except as disclosed in CACTUS
's Financial Statements, CACTUS did not have, as of the Closing
Date, any liabilities (secured or unsecured and whether accrued,
absolute, direct, indirect or otherwise) which were incurred
after March 31, 2000 and would be individually or, in the
aggregate, materially adverse to the results of operation or
financial condition of CACTUS.
(h) Litigation. There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, governmental or
regulatory body or arbitration tribunal against CACTUS or its
properties. Except as disclosed in Schedule 5.1(h), there are no
actions, suits or proceedings pending or, to the knowledge of
CACTUS, threatened against or relating to CACTUS. CACTUS is not,
<PAGE>A-9
and on the Closing Date will not be, in default under or with
respect to any judgment, order, writ, injunction or decree of any
court or of any federal, state, municipal or other governmental
authority, department, commission, board, agency or other
instrumentality; and CACTUS has, and on the Closing Date will
have, complied in all material respects with all laws, rules,
regulations and orders applicable to it, if any.
(i) Tax Matters. Except as set forth in Schedule 5.1(i), all federal,
foreign, state and local tax returns, reports and information
statements required to be filed by or with respect to the
activities of CACTUS have been filed for all the years and
periods for which such returns and statements were due, including
extensions thereof. Since March 31, 2000, CACTUS has not incurred
any liability with respect to any federal, foreign, state or
local taxes except in the ordinary and regular course of
business. Such returns, reports and information statements are
true and correct in all material respects insofar as they relate
to the activities of CACTUS. On the date of this Agreement,
CACTUS is not delinquent in the payment of any such tax or
assessment, and no deficiencies for any amount of such tax have
been proposed or assessed. Any tax sharing agreement among or
between CACTUS and any affiliate thereof shall be terminated as
of the Closing Date.
(j) Authority to Execute Agreement. The Board of Directors of CACTUS,
pursuant to the power and authority legally vested in it, has
duly authorized the execution and delivery by CACTUS of this
Agreement and the Exchange Stock, and has duly authorized each of
the transactions hereby contemplated. CACTUS has the power and
authority to execute and deliver this Agreement, to consummate
the transactions hereby contemplated and to take all other
actions required to be taken by it pursuant to the provisions
hereof. CACTUS has taken all the actions required by law, its
Certificate of Incorporation, as amended, its Bylaws, as amended,
or otherwise to authorize the execution and delivery of the
Exchange Stock pursuant to the provisions hereof. This Agreement
is valid and binding upon CACTUS in accordance with its terms.
Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will
constitute a violation or breach of the Certificate of
Incorporation, as amended, or the Bylaws, as amended of CACTUS,
or any agreement, stipulation, order, writ, injunction, decree,
law, rule or regulation applicable to CACTUS.
(k) Finder's Fees. CACTUS is now, and on the Closing Date will be
liable or obligated to pay a finder's, agent's or broker's fee to
Dawson/James, Ltd., of 100,000 shares of restricted shares of its
common stock, arising out of or in connection with this Agreement
or the transactions contemplated by this Agreement.
(1) Books and Records. The books and records of CACTUS are materially
complete and correct, are maintained in accordance with good
business practice and accurately present and reflect in all
material respects, all of the transactions therein described and
there have been no material transactions involving CACTUS which
properly should have been set forth therein and which have not
been accurately so set forth.
(m) From the date of this Agreement until the Closing Date, CACTUS
will give NOMATTERWARE and its counsel, accountants, and other
representatives upon reasonable notice, full access, during
normal business hours, to all of the properties, books, records,
and files of CACTUS and will furnish NOMATTERWARE and such
representatives during such period copies of all material
documents for their examination and review.
5.2 Disclosure. CACTUS has and at the Closing Date it will have, disclosed
all events, conditions and facts materially affecting the business and
prospects of CACTUS. CACTUS has not now and will not have at the
Closing Date, withheld knowledge of any such events, conditions and
<PAGE>A-10
facts which it knows, or has reasonable grounds to know, may
materially affect CACTUS 's business and prospects. Neither this
Agreement, nor any certificate, exhibit, schedule or other written
document or statement, furnished to NOMATTERWARE or the NOMATTERWARE
Shareholders by CACTUS in connection with the transactions
contemplated by this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary to be stated in order to make the statements contained
herein or therein not misleading.
SECTION 6
ACCESS AND INFORMATION
6.1 As to NOMATTERWARE. Subject to the protections provided by subsection
9.4 herein, NOMATTERWARE shall give to CACTUS and to CACTUS 'S
counsel, accountants and other representatives full access during
normal business hours throughout the period prior to the Closing, to
all of NOMATTERWARE's properties, books, contracts, commitments, and
records, including information concerning products and customer base,
and patents held by, or assigned to, NOMATTERWARE, and furnish CACTUS
during such period with all such information concerning NOMATTERWARE's
affairs as CACTUS reasonably may request.
6.2 As to CACTUS . Subject to the protections provided by subsection 9.4
herein, CACTUS shall give to NOMATTERWARE, the NOMATTERWARE
Shareholders and their counsel, accountants and other representatives,
full - access, during normal business hours throughout the period
prior to the Closing, to all of CACTUS 's properties, books,
contracts, commitments, and records, if any, and shall furnish
NOMATTERWARE and the NOMATTERWARE Shareholders during such period with
all such information concerning CACTUS's affairs as NOMATTERWARE and
the NOMATTERWARE Shareholders reasonably may request.
SECTION 7
COVENANTS OF NOMATTERWARE AND CERTAIN SHAREHOLDERS
7.1 No Solicitation. NOMATTERWARE and those Shareholders listed on Exhibit
A, to the extent within each Shareholder's control, will use their
best efforts to cause its officers, employees, agents and
representatives not, directly or indirectly, to solicit, encourage, or
initiate any discussions with, or indirectly to solicit, encourage, or
initiate any discussions with, or negotiate or otherwise deal with, or
provide any information to, any person or entity other than CACTUS and
its officers, employees, and agents, concerning any merger, sale of
substantial assets, or similar transaction involving NOMATTERWARE, or
any sale of any of its capital stock or of the capital stock held by
such Shareholders in excess of 10% of such Shareholder's current stock
holdings except as otherwise disclosed in this Agreement. NOMATTERWARE
will notify CACTUS immediately upon receipt of an inquiry, offer, or
proposal relating to any of the foregoing. None of the foregoing shall
prohibit providing information to others in a manner in keeping with
the ordinary conduct of NOMATTERWARE's business, or providing
information to government authorities.
7.2 Conduct of Business Pending the Transaction. NOMATTERWARE and those
Shareholders listed on Exhibit A, to the extent within each
Shareholder's control, covenant and agree with CACTUS that, prior to
the consummation of the transaction called for by this Agreement, and
Closing, or the termination of this Agreement pursuant to its terms,
unless CACTUS shall otherwise consent in writing, and except as
otherwise contemplated by this Agreement, NOMATTERWARE and those
Shareholders listed on Exhibit A, to the extent within each
Shareholder's control, will comply with each of the following:
<PAGE>A-11
(a) Its business shall be conducted only in the ordinary and usual
course. NOMATTERWARE shall use reasonable efforts to keep intact
its business organization and good will, keep available the
services of its respective officers and employees, and maintain
good relations with suppliers, creditors, employees, customers,
and others having business or financial relationships with it,
and it shall immediately notify CACTUS of any event or occurrence
which is material to, and not in the ordinary and usual course of
business of, NOMATTERWARE;
(b) It shall not declare, set aside, or pay any dividend or other
distribution on any of its outstanding securities;
(c) It shall not (i) issue or agree to issue any additional shares
of, or rights of any kind to acquire any shares of, its capital
stock of any class, or (ii) enter into any contract, agreement,
commitment, or arrangement with respect to any of the foregoing,
except as set forth in this Agreement;
(d) It shall not create, incur, or assume any long--term or
short--term indebtedness for money borrowed or make any capital
expenditures or commitment for capital expenditures, except in
the ordinary course of business and consistent with past
practice;
(e) It shall not adopt, enter into, or amend any bonus, profit
sharing, compensation, warrant, pension, retirement, deferred
compensation, employment, severance, termination or other
employee benefit plan, agreement, trust fund, or arrangement for
the benefit or welfare of any officer, director, or employee, or
(ii) agree to any material (in relation to historical
compensation) increase in the compensation payable or to become
payable to, or any increase in the contractual term of employment
of, any officer, director or employee except, with respect to
employees who are not officers or directors, in the ordinary
course of business in accordance with past practice, or with the
written approval of CACTUS ;
(f) It shall not sell lease, mortgage, encumber, or otherwise dispose
of or grant any interest in any of its assets or properties
except for: (i) sales, encumbrances, and other dispositions or
grants in the ordinary course of business and consistent with
past practice; (ii) liens for taxes not yet due; (iii) liens or
encumbrances that are not material in amount or effect and do not
impair the use of the property, or (iv) as specifically provided
for or permitted in this Agreement;
(g) It shall not enter into any agreement, commitment, or
understanding, whether in writing or otherwise, with respect to
any of the matters referred to in subparagraphs (a) through (f)
above;
(h) It will continue properly and promptly to file when due all
federal, state, local, foreign, and other tax returns, reports,
and declarations required to be filed by it, and will pay,, or
make full and adequate provision for the payment of, all taxes
and governmental charges due from or payable by it;
(i) It will comply with all laws and regulations applicable to it and
its operations;
(j) It will maintain in full force and effect insurance coverage of a
type and amount customary in its business, but not less than that
set forth in Schedule 4.1(m).
<PAGE>A-12
SECTION 8
COVENANTS OF CACTUS
8.1 No Solicitation. CACTUS will not discuss or negotiate with any other
corporation, firm or other person or entertain or consider any
inquiries or proposals relating to the possible disposition of its
shares of capital stock, or its assets, and will conduct business only
in the ordinary course. Notwithstanding the foregoing, CACTUS shall be
free to engage in activities mentioned in the preceding sentence which
are designed to further the mutual interests of the parties to this
Agreement.
8.2 Conduct of CACTUS Pending Closing. CACTUS covenants and agrees with
NOMATTERWARE that, prior to the consummation of the transactions
called for by this Agreement, and Closing, or the termination of this
Agreement pursuant to its terms, unless NOMATTERWARE shall otherwise
consent in writing, and except as otherwise contemplated by this
Agreement, CACTUS will comply with each of the following;
(a) No change will be made in CACTUS 's Certificate of Incorporation
or Bylaws or in CACTUS 's authorized or issued shares of stock,
except as may be first approved in writing by NOMATTERWARE.
(b) No dividends shall be declared, no stock options granted and no
employment agreements shall be entered into with officers or
directors in CACTUS , except as may be first approved in writing
by NOMATTERWARE.
SECTION 9
ADDITIONAL COVENANTS OF THE PARTIES
9.1 Cooperation. Both NOMATTERWARE and CACTUS will cooperate with each
other and their respective counsel, accountants and agents in carrying
out the transaction contemplated by this Agreement, and in delivering
all documents and instruments deemed reasonably necessary or useful by
the other party.
9.2 Expenses. Each of the parties hereto shall pay all of its respective
costs and expenses (including attorneys and accountants' fees, costs
and expenses) incurred in connection with this Agreement and the
consummation of the transactions contemplated herein.
9.3 Publicity. Prior to the Closing, any written news releases or public
disclosure by either party pertaining to this Agreement shall be
submitted to the other party for its review and approval prior to such
release or disclosure, provided, however, that (a) such approval shall
not be unreasonably withheld, and (b) such review and approval shall
not be required of disclosures required to comply, in the judgment of
counsel, with federal or state securities or corporate laws or
policies.
9.4 Confidentiality. While each party is obligated to provide access to
and furnish information in accordance with Sections 4 and S herein, it
is understood and agreed that such disclosure and information
subsequently obtained as a result of such disclosures are proprietary
and confidential in nature. Each party agrees to hold such information
in confidence and not to reveal any such information to any person who
is not a party to this Agreement, or an officer, director or key
employee thereof, and not to use the information obtained for any
purpose other than assisting in its due diligence inquiry precedent to
the Closing. Upon request of any party, a confidentiality agreement,
acceptable to the disclosing party, will be executed by any person
<PAGE>A-13
selected to receive such proprietary information, prior to receipt of
such information.
9.5 Limited Indemnification. NOMATTERWARE agrees to indemnify and hold
harmless the two current directors of CACTUS from and against any and
all damages arising from any act or omission of such directors related
solely to this Agreement or the transactions contemplated by this
Agreement.
SECTION 10
SURVIVAL OF REPRESENTATIONS,
WARRANTIES AND COVENANTS
10.1 The representations, warranties and covenants of NOMATTERWARE and
those Shareholders listed in Exhibit A contained herein shall survive
the execution and delivery of this Agreement, the Closing and the
consummation of the transactions called for by this Agreement. The
representations, warranties and covenants of CACTUS contained herein
shall survive the execution and delivery of this Agreement, the
Closing and the consummation of the transactions called for by this
Agreement.
SECTION 11
CONDITIONS PRECEDENT TO
OBLIGATIONS OF PARTIES
11.1 The obligations of CACTUS , NOMATTERWARE and those Shareholders listed
in Exhibit A under this Agreement shall be subject to the fulfillment,
on or prior to the Closing, of all conditions elsewhere herein set
forth, including, but not limited to, receipt by the appropriate party
of all deliveries required by Sections 4 and B herein, and
fulfillment, prior to Closing, of each of the following conditions:
(a) All representations and warranties made by NOMATTERWARE,
Shareholders listed in Exhibit A and CACTUS in this Agreement
shall be true and correct in all material respects on and as of
the Closing Date with the same effect as if such representations
and warranties had been made on and as of the Closing Date;
(b) NOMATTERWARE, Shareholders listed in Exhibit A and CACTUS shall
have performed or complied with all covenants, agreements and
conditions contained in this Agreement on their part required to
be performed or complied with at or prior to the Closing.
(c) All material authorizations, consents or approvals of any and all
governmental regulatory authorities necessary in connection with
the consummation of the transactions contemplated by this
Agreement shall have been obtained and be in full force and
effect.
(d) The Closing shall not violate any permit or order, decree or
judgment of any court or governmental body having competent
jurisdiction and there shall not have been instituted any legal
or administrative action or proceeding to enjoin the transaction
contemplated hereby or seeking damages from any party with
respect thereto.
(e) Each NOMATTERWARE Shareholder and Dawson/James, Ltd. who will be
acquiring Exchange stock will be required, at Closing, to submit
<PAGE>A-14
an agreement confirming that all the Exchange Stock received will
be acquired for investment and not with a view to, or for sale in
connection with, any distribution thereof, and agreeing not to
transfer any of the Exchange Stock for a period of one year from
the date of the Closing, except to those persons approved by
legal counsel to CACTUS as falling within the exemption from
registration under the Securities Act of 1933 and any applicable
state securities laws, which transfers do not constitute a public
distribution of securities, and in which the transferees execute
an investment letter in form and substance satisfactory to
counsel for CACTUS . It is the intention of Cactus, subsequent to
the Exchange, to prepare and file with the U.S. Securities &
Exchange Commission a Form SB-2 Registration Statement, which
will register all of the shares of the Company. Each NOMATTERWARE
Shareholder acquiring Exchange Stock will be required to transfer
to CACTUS at the Closing his/her respective NOMATTERWARE Shares,
free and clear of all liens, mortgages, pledges, encumbrances or
changes, whether disclosed or undisclosed.
(g) All schedules, prepared by NOMATTERWARE or CACTUS shall be
current or updated as necessary as of the Closing Date.
(h) Each party shall have received favorable opinions from the other
party's counsel on such matters in connection with the
transactions contemplated by this Agreement as are reasonable.
(i) Each party shall have satisfied itself that since the date of
this Agreement the business of the other party has been conducted
in the ordinary course. In addition, each party shall have
satisfied itself that no withdrawals of cash or other assets have
been made and no indebtedness has been incurred since the date of
this Agreement, except in the ordinary course of business or with
respect to services rendered or expenses incurred in connection
with the Closing of this Agreement, unless said withdrawals or
indebtedness were either authorized by the terms of this
Agreement or subsequently consented to in writing by the parties.
(j) Each party covenants that, to the best of its knowledge, it has
complied in all material respects with all applicable laws,
orders and regulations of federal, state, municipal and/or other
governments and/or any instrumentality thereof, domestic or
foreign, applicable to their assets, to the business conducted by
them and to the transactions contemplated by this Agreement.
(k) NOMATTERWARE shall have provided to CACTUS through April 30,
2000, audited financial statements prepared in accordance with
generally accepted accounting principles.
(1) CACTUS shall have provided to NOMATTERWARE unaudited financial
statements of CACTUS for the three months ended March 31, 2000,
prepared in accordance with generally accepted accounting
principles.
(m) Each party shall have granted to the other party (acting through
its management personnel, counsel, accountants or other
representatives designated by it) full opportunity to examine its
books and records, properties, plants and equipment, proprietary
rights and other instruments, rights and papers of all kinds in
accordance with Sections 4 and B hereof, and each party shall be
satisfied to proceed with the transactions contemplated by this
Agreement upon completion of such examination and investigation.
(n) If Shareholders, who in the aggregate own more than five percent
(5%) of the NOMATTERWARE Shares, dissent from the proposed share
exchange, or are unable or for any reason, refuse to transfer any
or all of their NOMATTERWARE shares to CACTUS in accordance with
Section 1 of this Agreement, CACTUS , at its option, may
<PAGE>A-15
terminate this Agreement.
(o) Each party shall have satisfied itself that all transactions
contemplated by this Agreement, including those contemplated by
the exhibits and schedules attached hereto, shall be legal and
binding under applicable statutory and case law of the State of
Nevada, including, but not limited to Nevada securities laws and
all other applicable state securities laws.
(p) The Exchange shall be approved by the Boards of Directors of both
NOMATTERWARE and CACTUS. Furthermore, the Exchange shall be
approved by the shareholders of NOMATTERWARE and CACTUS, if
deemed necessary or appropriate by counsel for the same, within
thirty (30) days following execution of this Agreement. If such a
meeting is deemed necessary, the management of NOMATTERWARE and
CACTUS agree to seek and obtain the approval to their respective
Shareholders and to solicit proxies in support of the same.
(q) CACTUS and NOMATTERWARE and their respective legal counsel shall
have received copies of all such certificates, opinions and other
documents and instruments as each party or its legal counsel may
reasonably request pursuant to this Agreement or otherwise in
connection with the consummation of the transactions contemplated
hereby, and all such certificates, opinions and other documents
and instruments received by each party shall be reasonably
satisfactory, in form and substance, to each party and its legal
counsel.
(r) Both NOMATTERWARE and CACTUS shall have the right to waive any or
all of the conditions precedent to its obligations hereunder not
otherwise legally required; provided, however, that no waiver by
a party of any condition precedent to its obligations hereunder
shall constitute a waiver by such party of any other condition.
SECTION 12
TERMINATION, AMENDMENT, WAIVER
12.1 This Agreement may be terminated at any time prior to the Closing, and
the contemplated transactions abandoned, without liability to either
party, except with respect to the obligations of CACTUS, NOMATTERWARE
and the NOMATTERWARE Shareholders under Section 9.4 hereof:
(a) By mutual agreement of CACTUS and NOMATTERWARE;
(b) If the Closing (as defined in Section 3) shall not have taken
place on or prior to May 30, 2000, this Agreement can be
terminated upon written notice given by CACTUS or NOMATTERWARE
whomever is the party that is not in material default.
(c) By CACTUS, if in its reasonable belief there has been a material
misrepresentation or breach of warranty on the part of any
Shareholder in the representations and warranties set forth in
the Agreement.
(d) By NOMATTERWARE or a majority of those Shareholders listed in
Exhibit A (as measured by their equity interest) if, in the
reasonable belief of NOMATTERWARE or any such Shareholders, there
has been a material misrepresentation or breach of warranty on
the part of CACTUS in the representations and warranties set
forth in the Agreement;
(e) By CACTUS if, in its opinion or that of its counsel, that the
Exchange does not qualify for exemption from registration under
applicable federal and state securities laws, or qualification,
<PAGE>A-16
if obtainable, cannot be accomplished in CACTUS 's opinion or
that of its counsel, without unreasonable expense or effort;
(f) By CACTUS, if, in its opinion or that of its counsel, the
Exchange cannot be consummated under Nevada or other relevant
state corporate law or, if consummation is possible, that it
cannot be accomplished, in CACTUS 's opinion or that of its
counsel, without unreasonable expense or effort;
(g) By CACTUS or by a majority of those Shareholders listed in
Exhibit A (as measured by their equity interest) if either party
shall determine in its sole discretion that the Exchange has
become inadvisable or impracticable by reason of the institution
or threat by state, local or federal governmental authorities or
by any other person of material litigation or proceedings against
any party (it being understood and agreed that a written request
by a governmental authority for information with respect to the
Exchange, which information could be used in connection with such
litigation or proceedings, may be deemed to be a threat of
material litigation or proceedings regardless of whether such
request is received before or after the signing of this
Agreement);
(h) By CACTUS if the business or assets or financial condition of
NOMATTERWARE, taken as a whole, have been materially and
adversely affected, whether by the institution of litigation or
by reason of changes or developments or in operations in the
ordinary course of business or otherwise; or, by NOMATTERWARE
through action by a majority of those Shareholders listed in
Exhibit A (as measured by their equity interest) if the business
or assets or financial condition of CACTUS, taken as a whole,
have been materially and adversely affected, whether by the
institution of litigation or by reason of changes or developments
or in operations in the ordinary course of business or otherwise;
(i) By CACTUS if holders of more than five percent (5%) of the
NOMATTERWARE Shares fail to tender their stock at the Closing of
the Exchange;
(j) By NOMATTERWARE if, in its sole discretion, it should appear that
the combined entity will not be auditable;
(k) By NOMATTERWARE if CACTUS fails to perform material conditions
set forth in Section 11 herein;
(1) By NOMATTERWARE if examination of CACTUS 's books and records
pursuant to Section 5 herein uncovers a material deficiency;
(m) By CACTUS if NOMATTERWARE fails to perform material conditions
set forth in Section 11 herein; and
(n) By CACTUS if examination of NOMATTERWARE's books and records
pursuant to Section 4 herein uncovers a material deficiency.
SECTION 13
MISCELLANEOUS
13.1 Entire Agreement. This Agreement (including the Exhibits and
Schedules hereto) contains the entire agreement between the
parties with respect to the transactions contemplated hereby,
and supersedes all negotiations, representations, warranties,
commitments, offers, contracts, and writings prior to the date
hereof. No waiver and no modification or amendment of any
provision of this Agreement shall be effective unless
<PAGE>A-17
specifically made in writing and duly signed by the party to
be bound thereby.
13.2 Binding Agreement.
(a) This Agreement shall become binding upon the parties when,
but only when, it shall have been signed on behalf of all
parties.
(b) Subject to the condition stated in subsection (a), above,
this Agreement shall be binding upon, and inure to the
benefit of, the respective parties and their legal
representatives, successors and assigns. This Agreement, in
all of its particulars, shall be enforceable by the means
set forth in subsection 13.9 for the recovery of damages or
by way of specific performance and the terms and conditions
of this Agreement shall remain in full force and effect
subsequent to Closing and shall not be deemed to be merged
into any documents conveyed and delivered at the time of
Closing. In the event that subsection 13.9 is found to be
unenforceable as to any party for any reason or is not
invoked by any party, and any person is required to initiate
any action at law or in equity for the enforcement of this
Agreement, the prevailing party in such litigation shall be
entitled to recover from the party determined to be in
default, all of its reasonable costs incurred in said
litigation, including attorneys' fees.
13.3 Shareholders Owning at Least Five Percent (5%) of the Outstanding
Common Stock of NOMATTERWARE. The Shareholders owning at least 5% of
the outstanding common stock of NOMATTERWARE (see Exhibit A hereto)
are only executing this Agreement with respect to sections 3.4, 4, 7,
9.4, 10, 11, 12.l(d and g ), 13.2, 13.3, 13.4, 13.5, and 13. 9.
13.4 Counterparts. This Agreement may be executed in one or more
counterparts, via facsimile signature, each of which may be deemed an
original, but all of which together, shall constitute one and the same
instrument.
13.5 Severability. If any provisions hereof shall be held invalid or
unenforceable by any court of competent jurisdiction or as a result of
future legislative action, such holding or action shall be strictly
construed and shall not affect the validity or effect of any other
provision hereof.
13.6 Assignability. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto; provided,
that neither this Agreement nor any right hereunder shall be
assignable by NOMATTERWARE or CACTUS without prior written consent of
the other party.
13.7 Captions. The captions of the various Sections of this Agreement have
been inserted only for convenience of reference and shall not be
deemed to modify, explain, enlarge or restrict any of the provisions
of this Agreement.
13.8 Governing Law. The validity, interpretation and effect of this
Agreement shall be governed exclusively by the laws of the State of
Nevada.
13.9 Dispute Resolution. In the event of a dispute between the parties
hereto involving a claim of breach of representation or warranty
hereunder, or to enforce a covenant herein (either or both of which
are referred to hereafter as a Claim") , if it is the desire of any
party for quick resolution, the rights and obligations of the parties
hereto arising under the terms of this Agreement with respect to such
Claims and/or resolution of such disputes will be by the means of the
judgment of an independent third party ("Rent--A--Judge") who has been
selected and hired through the mutual agreement of the parties. The
utilization of this subsection 13.9, if invoked by any party hereto,
shall be the exclusive remedy for resolving a claim regardless of
whether legal action has or has not been otherwise instituted. If
legal action has been instituted by any party, and this subsection
<PAGE>A-18
13.9 is invoked in a timely manner, any such legal action shall be
voided and immediately withdrawn.
(a) In the event of a Claim by any party, any party may make a
written request upon the other parties for a "Rent--A-- Judge." A
request by any party for the employment of a "Rent-- A--Judge" to
resolve the Claim shall be binding on all other parties to this
Agreement in accordance with the terms hereof. The parties may
agree upon one "Rent--A--Judge," but in the event that they
cannot agree, there shall be three, one named in writing by each
of the parties within twenty (20) days after the initial demand
for employment of a "Rent--A-- Judge," and a third chosen by the
two appointed. Should either party refuse or neglect to join in
the appointment of the "Rent--A--Judge(s)" or to furnish the
"Rent--A--Judge(s) with any papers or information demanded, the
"Rent--A--Judge(s)" are empowered by all parties to this
Agreement to proceed ex parte.
(b) Claim resolution proceedings shall take place in the City of Las
Vegas, State of Nevada, and the hearing before the
Rent--A--Judge(s)" of the matter to be arbitrated shall be at the
time and place within said city or county as is selected by the
"Rent--A--Judge(s)?' The "Rent--A--Judge(s)" shall select such
time and place promptly after appointment arid shall give written
notice thereof to each party at least thirty (30) days prior to
the date so fixed. At the hearing, any relevant evidence may be
presented by either party, and the formal rules of evidence
applicable to judicial proceedings shall not govern. Evidence may
be admitted or excluded in the sole discretion of the
"Rent--A--Judge(s) Said "Rent--A--Judge(s)" shall hear and
determine the matter and shall execute and acknowledge their
award in writing and cause a copy thereof to be delivered to each
of the parties.
(c) If there is only one (1) "Rent--A--Judge," his or her decision
shall be binding and conclusive on the parties, and if there are
three (3) "Rent--A--Judge(s)" the decision of any two (2) shall
be binding and conclusive.
(d) If three (3) "Rent--A--Judge(s)" are selected under the foregoing
procedure, but two (2) of the three (3) fail to reach an
agreement in the determination of the matter in question, the
matter shall be decided by three (3) new "Rent-- A--Judge(s)" who
shall be appointed and shall proceed in the same manner, and the
process shall be repeated until a decision is finally reached by
two (2) of the three (3) "Rent-- A--Judge(s)" selected.
(e) The costs of such Claim resolution shall be borne by the parties
equally and each party shall pay its own attorneys' fees,
provided, however, that in the event either party challenges or
in any way seeks to have the Rent--A-- Judge's decision or award
vacated or corrected or modified, if the challenge is denied or
the original decision or award is affirmed, the challenging party
shall pay the costs and fees, including reasonable attorneys'
fees, of the non--challenging party, both for the challenge and
for the original Claim resolution process.
13.10Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and delivered in person or sent by
certified mail, postage prepaid and properly addressed as follows:
To NOMATTERWARE:
Brad Churchill
NOMATTERWARE
Suite 360, 717 - 7th Avenue SW
Calgary AB, Canada T2P 0Z3
<PAGE>A-19
With a Copy to:
Robert Domico, Esq.
8610 South Eastern Avenue
Suite 19
Las Vegas, NV 89123
To CACTUS :
Jim Pitochelli, President
CACTUS SPINA, INC.
3930 Howard Hughes Parkway
Suite 100
Las Vegas, Nevada 89109
With a Copy to:
William Barnett
15233 Ventura Boulevard
Suite 410
Sherman Oaks, CA 91403
Any party may from time to time change its address for the purpose of
notices to that party by a similar notice specifying a new address, but no such
change shall be deemed to have been given until it is actually received by the
respective party hereto.
All notices and other communications required or permitted under this
Agreement which are addressed as provided in this Section 13.10 if delivered
personally, shall be effective upon delivery; and, if delivered by mail, shall
be effective three days following deposit in the United States mail, postage
prepaid.
<PAGE>A-20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CACTUS SPINA, INC.
A Nevada Coorporation
By: ________________________________
James E. Pitochelli
President
NOMATTERWARE
a Nevada corporation
By: ________________________________
Brad Churchill
President
<PAGE>A-21
EXHIBIT LIST
Exhibit A: Five Percent Shareholders of NOMATTERWARE
Exhibit B: Consent of Board of Directors of NOMATTERWARE
Exhibit C: Consent of Board of Directors of CACTUS SPINA, INC.
Exhibit D: Finders Agreement between CACTUS SPINA, INC. and Dawson/James Ltd.
SCHEDULE LIST
Schedule 4.1(b): NOMATTERWARE Common Stock Outstanding
Schedule 4.1 (f): Litigation Involving NOMATTERWARE
Schedule 4.1 (h): Absence of Certain Changes - NOMATTERWARE
Schedule 4.1 (i): NOMATTERWARE Employee Benefit Plans
Schedule 4.1 (j): Asset Ownership Exceptions
Schedule 4.1 (k): NOMATTERWARE Tax Matters
Schedule 4.1 (1): List of Insurance Policies in Force
Schedule 4.1 (m): Operating Permits/Licenses
Schedule 5.1 (b): CACTUS Options and Warrants Outstanding
Schedule 5.1 (b) CACTUS Employee Stock Option Plan
Schedule 5.1 (h) Litigation Involving CACTUS
Schedule 5.1 (i): CACTUS Tax Matters
<PAGE>A-22
EXHIBIT A
FIVE PERCENT SHAREHOLDERS OF NOMATTERWARE
Shareholder No. of Shares Percentage
<PAGE>A-23
EXHIBIT "B"
CONSENT OP DIRECTORS OF NOMATTERWARE
A special meeting of the Directors of NOMATTERWARE (the "Corporation"),
a Nevada corporation was held by consent and without an actual meeting. The
undersigned, being all of the Directors, do hereby waive notice of the time,
place and purpose of this meeting of the Directors of the Corporation and, in
lieu thereof, hereby agree and consent to the adoption of the following
corporate actions.
WHEREAS, the Corporation entered into an Agreement for Sale and
Purchase of the Common Stock of Cactus Spina, Inc.(the "Agreement") as of March
30, 2000 with CACTUS SPINA, INC. ("CACTUS ") whereby the Corporation intends to
exchange approximately all of the issued and outstanding capital stock of the
Corporation for a specified number of CACTUS common shares;
WHEREAS, a formal agreement has been prepared consistent with the terms
of the Agreement, which "Plan and Agreement of Reorganization" is attached
hereto;
WHEREAS, it is in the Corporations best interests to approve the terms
and execution of the Plan and Agreement of Reorganization on behalf of the
Corporation;
NOW, THEREFORE, BE IT RESOLVED, that the terms and conditions of the
exchange as set forth in the Plan and Agreement of Reorganization be, and the
same hereby are, ratified and confirmed, and the President and Secretary of the
Corporation are authorized to execute the same on behalf of the Corporation.
GENERAL AUTHORIZATION
BE IT RESOLVED that the President and Secretary of the Corporation be,
and they hereby are, authorized, directed and empowered to prepare or cause to
be prepared, execute and deliver all such documents and instruments and to
undertake all such actions as they deem necessary or advisable in order to carry
out and perform any or all of the matters contemplated by the Plan and Agreement
of Reorganization and as authorized in the foregoing resolution.
IN WITNESS WHEREOF, each of the undersigned has executed this written
consent, which shall be effective as of April ____, 2000.
------------------------------------ -----------------------------------
Brad Churchill Lise Bradley
<PAGE>A-24
EXHIBIT "C"
CACTUS SPINA, INC.
Minutes of Special Meeting of the Board of Directors
April ______________, 2000
A special meeting of the Board of Directors of CACTUS SPINA, INC. (the
"Company") was held on April_____ 2000, at the offices of Robert Domico, 8610 S.
Eastern Avenue, Las Vegas, NV.
Jim Pitochelli, Chairman of the Board, called the meeting to order.
Cynthia Lander acted as Secretary of the meeting. All of the directors of the
Company were present as follows:
Jim Pitochelli, sole Director
Also present was Robert Domico, counsel to the Company.
All of the Directors, constituting quorum, acknowledged that they could
hear and be heard at all times during the meeting. In addition, all directors
waived notice of the meeting.
Reorganization of Company.
WHEREAS, the Company has had no business activity since December 1996;
and
WHEREAS, over the past twenty-nine months the Board has investigated
numerous potential business strategies, including, but not limited to, the sale
or merger of the Company with another company; and
WHEREAS, the Board has now identified NOMATTERWARE, a Nevada
corporation ("NOMATTERWARE") , as a corporation with which to undertake a
tax--free reorganization (the "Reorganization"), as a result of which
Reorganization some value could be returned to the shareholders of the Company;
and
WHEREAS, considering all facts and circumstances, the Board deems it to
be in the best interests of the shareholders of the Company to proceed with the
Reorganization;
NOW, THEREFORE, after discussion by the Board, it was
RESOLVED, that all actions previously undertaken by the officers and
directors of the Company in connection with the proposed Reorganization be
hereby ratified and approved; and
RESOLVED, FURTHER, that the officers of the Company are authorized,
empowered, and directed to execute and deliver the proposed form of "Plan and
Agreement of Reorganization" (the "Agreement"), a copy of which Agreement is
attached hereto as Exhibit A; and
RESOLVED, FURTHER, that the officers of the company are authorized,
empowered, and directed to execute and deliver all such additional documents and
instruments, and to take all such additional actions, as they deem necessary or
advisable in order to carry out the purposes and intent of the Agreement,
including, but not limited to, the preparation of a Proxy Statement and the
solicitation of votes in favor of the Reorganization, if required.
There being no further business to come before the Board, the meeting
was adjourned.
April _________, 2000
------------------------------------
Cynthia Lander, Assistant secretary
<PAGE>A-25
SCHEDULE 4.1(b)
NOMATTERWARE Common Stock Outstanding
<PAGE>A-26
SCHEDULE 4.1 (f)
Litigation Involving NOMATTERWARE
None.
<PAGE>A-27
SCHEDULE 4.1 (h)
Absence of Certain Changes -- NOMATTERWARE
There have been no substantive changes.
<PAGE>A-28
SCHEDULE 4.1(i)
NOMATTERWARE Employee Benefit Plans
None.
<PAGE>A-29
SCHEDULE 4.1(j)
Asset Ownership Exceptions
There are no exceptions to Asset Ownership.
<PAGE>A-30
SCHEDULE 4.1(k)
NOMATTERWARE Tax Matters
<PAGE>A-31
SCHEDULE 4.1 (1)
List of Insurance Policies in Force
<PAGE>A-32
SCHEDULE 4.1 (m)
Operating Permits/Licenses
There are no Operating Permits/Licenses required by NOMATTERWARE to
conduct its business.
<PAGE>A-33
SCHEDULE 5.1 (b)
CACTUS Options and Warrants Outstanding
None
<PAGE>A-34
SCHEDULE 5.1 (b)
Litigation Involving CACTUS
None
<PAGE>A-35
SCHEDULE 5.1(i)
CACTUS Tax Matters
None.
<PAGE>i
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Officers and Directors
Section 78.751 of the Nevada General Corporation Law allows domestic
corporations such as Cactus to indemnify any person who was or is threatened to
be made a party to any threatened, pending, or completed action, suit, or
proceeding, 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 any corporation,
partnership, joint venture, trust, or other enterprise. Cactus' Bylaws provide
that such persons shall be indemnified and held harmless to the fullest extent
permitted by Nevada law.
Nevada law permits domestic corporations such as Cactus to advance expenses in
connection with defending any such proceedings, provided that the person being
indemnified undertakes to repay any such advances if it is later determined that
he was not entitled to be indemnified by the corporation. Cactus' Bylaws require
that Cactus advance such funds upon receipt of such an undertaking with respect
to repayment.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers, and controlling persons of Cactus pursuant
to the foregoing provisions or otherwise, Cactus has been advised that, in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in such act, and is therefore unenforceable.
Item 21. Exhibits and Financial Statement Schedules
(a)
Exhibits Description
---------- ---------------------------------------------------------------------
2.1 Agreement and Plan of Merger, dated as of April 1, 2000, between
Cactus Spina, Inc., and NoMatterWare, Inc. (included as Appendix A to
the Proxy Statement-Prospectus forming a part of this Registration
Statement and incorporated herein by reference)
3.1 Articles of Incorporation of Cactus Spina, Inc.
3.2 Bylaws of Cactus Spina, Inc.
4.1 Text of Common stock Certificate for Cactus Spina, Inc. (renamed
NoMatterWare, Inc.)
5.1 Opinion of William B. Barnett, Esq., as to the legality of the shares
of Cactus Spina, Inc.
23.1 Consent of Grant Thornton LLP
23.2 Consent of William B. Barnett, Esq. (included as part of his opinion
filed as Exhibit 5.1)
23.3 Consent of Michael A. Segelstein, CPA
(b) Financial Statement Schedules
<PAGE>ii
Item 22. Undertakings
Cactus hereby undertakes:
1. to respond to requests for information that is incorporated by reference
into the Prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form S-4
under the Securities Act of 1933, within one business day of receipt of any
such request, and to send the incorporated documents by first-class mail or
other equally prompt means, including information contained in documents
filed after the effective date of the registration statement through the
date of responding to such request.
2. to supply by means of a post-effective amendment all information concerning
a transaction, and the company being acquired involved therein, that was
not the subject of and included in the registration statement when it
became effective; and
3. insofar as indemnification for liabilities under the Securities Act of 1933
may be permitted to directors, officers and controlling persons of Cactus
pursuant to the provisions described in Item 20 above, or otherwise, Cactus
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable. If a claim of
indemnification against such liabilities (other than the payment by Cactus
of expenses incurred or paid by a director, officer, or controlling person
of cactus in a successful defense of any action, suit or proceeding) is
asserted by such director, officer, or controlling person in connection
with the securities being registered, Cactus will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the questions 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Cactus
had duly caused this Registration Statement to be signed on its behalf by the
undersidned, thereunto duly authorized in the City of Las Vegas, State of
Nevada, on the 1 day of August, 2000.
Cactus Spina, Inc.
By: /s/ JIM PITOCHELLI
------------------------------------
Jim Pitochelli
Chief Executive Officer and Chairman
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
-------------------------------- -------------------------------------------------- ---------------
/s/ JIM PITOCHELLI Chairman, Chief Executive Officer, Chief Financial August 1, 2000
-------------------------------- Officer, Director
Jim Pitochelli
/s/ JIM PITOCHELLI Secretary, Director August 1, 2000
--------------------------------
Jim Pitochelli
</TABLE>
<PAGE>iii
EXHIBIT INDEX
Exhibits Description
---------- ---------------------------------------------------------------------
2.1 Agreement and Plan of Merger, dated as of April 1, 2000, between
Cactus Spina, Inc., and NoMatterWare, Inc. (included as Appendix A to
the Proxy Statement-Prospectus forming a part of this Registration
Statement and incorporated herein by reference)
3.1 Articles of Incorporation of Cactus Spina, Inc.
3.2 Bylaws of Cactus Spina, Inc.
4.1 Text of Common stock Certificate for Cactus Spina, Inc. (renamed
NoMatterWare, Inc.)
5.1 Opinion of William B. Barnett, Esq., as to the legality of the shares
of Cactus Spina, Inc.
23.1 Consent of Grant Thornton LLP
23.2 Consent of William B. Barnett, Esq. (included as part of his opinion
filed as Exhibit 5.1)
23.3 Consent of Michael A. Segelstein, CPA
