Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2/A Pre-Effective Amendment to Registration of 144 530K
Securities by a Small-Business Issuer
3: EX-4.11.1 Securities Purchase Agreement 39 192K
4: EX-4.11.2 Form of Laurus Secured Convertible Term Note 14 49K
5: EX-4.11.3 Master Security Agreement 13 37K
6: EX-4.11.4 Form of Warrant I 10 44K
7: EX-4.11.4.1 Warrant Ii 11 47K
8: EX-4.11.5 Restrictive Account Agreement 6 26K
9: EX-4.11.5.1 Letter Relating to Restricted Account Agreement 2 14K
2: EX-4.9.2 Form of Convertible Note 17 65K
10: EX-10.8 Master Service 37 111K
11: EX-10.8.1 Amendment to Master Service Agreement 21 59K
12: EX-10.9 Service Bureau Agreement 24 86K
SB-2/A — Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer
Document Table of Contents
Filed with the Securities & Exchange Commission on June 18, 2004
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
Form SB 2 filed on
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
3,491,576(1)
EPIXTAR CORP.
(Name of issuer in its charter)
FL 7385 65-0722193
-- ---- ----------
(State or jurisdiction
of incorporation (Primary Standard Industrial (I.R.S. Employer
or organization) Classification Code Number) Identification No.)
11900 Biscayne Boulevard,
Miami, Florida 33181
(305) 503-8600
(Address and telephone number of principal executive offices)
DAVID SROUR
Chief Executive Officer
11900 Biscayne Boulevard,
Miami, Florida 33181
(305) 503-8600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
MICHAEL D. DIGIOVANNA, ESQUIRE
212 Carnegie Center
Suite 206
Princeton, New Jersey 08540
(609)919 636
Approximate date of proposed sale to the public AS SOON AS PRACTICABLE AFTER
THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box [X].
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434, check
the following box. [ ]
CALCULATION OF REGISTRATION FEE
[Enlarge/Download Table]
Title of each Proposed Proposed
class of securities Amount to maximum offering Maximum aggregate Amount of
to be registered be registered price per unit offering price registration fee
---------------- ------------- -------------- -------------- ----------------
Common Stock
par value $. 001 1,197,989 $4.65 $ 5,570,649(1) $ 450.67(1)
Common Stock
par value $.001 1,213,352 (2) 4.14 $ 5,023,277 $ 592.24
Common Stock
par value $.001 3,655,596 3.25 $11,880,687 $1,327.07
Total 5,966,937
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon the average of the bid and asked prices
of the common stock on the OTC Bulletin Board on June 26, 2003.
(2) Represents additional shares to be registered subsequent to the
original SB-2 filed by the Company subsequent to June 30, 2003 based upon
the average of the bid and asked prices of the common stock on the OTC
Bulletin Board on May 10, 2004.
(3) Represents additional shares to be registered subsequent to the
original SB-2 filed by the Company subsequent to May 14, 2004) based upon
the average of the bid and asked prices of the common stock on the OTC
Bulletin Board on June 14, 2004.
Pursuant to Rule 416 of the Act, this registration statement also
covers such indeterminate additional shares of common stock as may become
issuable as a result of stock splits, stock dividends or other similar events.
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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
EXPLANATORY NOTE
This registration statement contains two prospectuses: one relating to
the resale offering by selling stockolders of 2,475,376 shares of the
Company's common stock, par value $.001, per share and another prospectus
relating to the offering of 3,491,576 shares of common stock held by a selling
stockholder who may wish to sell common stock pursuant to securities acquired in
the Company's recent note financings. The later prospectus relating to the the
note financings is referred to as the note financing prospectus. Following the
prospectus are substitute pages of the note financing prospectus, including
alternate pages front outside and back cover pages, an alternative "The
Offering" section of the "Prospectus summary" and section entitled "Selling
Stockholders." Each of the alternate pages for the selling stockholder
prospectus is labeled "Alternate page for note financing prospectus." All other
sections of the prospectus are to be used in the note financing prospectus. In
addition, cross-references in the prospectus will be adjusted in the selling
stockholder prospectus to refer to the appropriate sections.
PROSPECTUS
2,475,376 Shares of Common Stock
EPIXTAR CORP
Stockholder of Epixtar Corp. named under the caption "Selling Stockholder" may
offer and sell up to 2,475,376 Shares of our common stock. Of the shares offered
hereby 2,204,241 will be issued in the future pursuant to warrants and
convertible preferred stock presently outstanding. We will not receive any of
the proceeds from the sale of shares by the selling stockholders. Concurrently
with this offering other stockholders are selling 3,591,576(1) shares subject to
outstanding notes and warrants.
Our common stock is quoted on the OTC Bulletin Board under the symbol EPXR. On
June 14, 2004, the price of the Common Stock was $3.30 per share.
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 THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Our common stock being offered by this prospectus involves a high degree of
risk. You should read the "Risk Factors" section beginning on page 6 before you
decide to purchase any common stock.
The date of this Prospectus is
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell securities, and we are not soliciting offers to buy these securities, in
any state where the offer or sale is not permitted.
TABLE OF CONTENTS
Page
----
Prospectus Summary.........................................................
Risk Factors...............................................................
Forward Looking Information................................................
Use of Proceeds............................................................
Capitalization.............................................................
Market Information.........................................................
SelectedFinancial Information..............................................
Management Discussion and Analysis of Financial Condition and
Results of Operations....................................................
Our Business...............................................................
Property...................................................................
Legal Proceedings..........................................................
Directors, Executive Officers..............................................
Security Ownership.........................................................
Certain Relationships and Related Transactions.............................
Plan of Distribution.......................................................
Selling Stockholder........................................................
Description of Securities..................................................
Legal Matters..............................................................
Experts....................................................................
Available Information......................................................
Financial Statements.......................................................F-
You should rely only on the information contained in this document. We have not
authorized anyone to provide you with information that is different. This
document may only be used where it is legal to sell these securities. The
information in this document may only be accurate on the date of this document.
1
Prospectus Summary
This summary highlights certain information contained elsewhere in this
prospectus. You should read the following summary together with the more
detailed information regarding Epixtar Corp. and its financial statements and
the related notes appearing elsewhere in this prospectus.
Our Business
We are primarily engaged in a contact center business in the Philippines. Our
contact centers perform business process outsourcing or BPO services for third
parties. These services include marketing campaigns such as inbound services for
customer care and inbound sales, and outbound services such as, data collection
and customer acquisition for clients. From July 2001 to the present
substantially all our revenue has been derived from subsidiaries acting as an
internet service provider or ISP to small businesses through third party dial up
facilities. These services were marketed through independent contact centers
that we supervised, many of which were overseas. As result of the trend to
foreign outsourcing and our expertise in contact center operations, we decided
in 2003 to change the focus of our business. As of June 15, 2004 we have 600
contact center seats in the Philippines. [We anticipate by December 31, 2004 we
will be operating 2000 seats with additional seats in development.] For the
immediate future we will continue to derive most of our revenue from the ISP
business. We believe that contact center revenue will be our primary source of
revenue beginning in the first quarter of 2005.
Our business, especially, the ISP business is subject to extensive regulation
relating primarily to telemarketing activity and alleged unauthorized billing.
We were subject to a Federal Trade Commission injunction which for a period of
time prevented us from billing and marketing our ISP services. In addition, we
are subject to two preliminary injunctions restricting our activities in two
states and four states have served us with investigative subpoena. In all cases
the company vehemently denies any wrong doing and is working to bring each
action to a successful conclusion. We have developed stringent standards to
avoid regulatory actions and the current customer complaints relating to any
proceeding reflect only a small percentage of our customers. While we believe we
are in substantial compliance with the rules, for economic reasons we are In
settlement discussions with respect to proceedings.
Our principal place of business is located at 11900 Biscayne Boulevard, Miami,
Florida 33181. Our general telephone number is (305) 503-8600.
Epixtar Corp. is also referred to in this prospectus as "Epixtar," "we," "us,"
or "our." These references shall include us and our subsidiaries unless
otherwise indicated by the context.
2
THE OFFERING
Our Securities
Securities Offered by
the Selling Stockholders Common Stock 2,475,376 (1)
Concurrent Offering
Outstanding before the Offering. Common Stock: 11,158,338 (3)
and concurrent offering
Preferred Stock: 22,010
Outstanding after the Offering Common Stock 16,758,465 (4)
And concurrent offering Preferred Stock - none
--------------------------------------------------------------------------------
(1) Includes 2,204,241 shares of Common Stock not presently outstanding
but issuable upon conversion of preferred stock or conversion of notes
and exercise of warrants held by the selling stockholders. The amount
also includes 190,000 shares reserved for issuance upon conversion of
accrued dividends and interest. Depending upon the time of conversion a
portion of these shares may not be issued.
(2) The concurrent offering consists of shares of common stock subject to
convertible notes and warrants issued in 2004 as well as shares which
may be issued upon conversion of accrued interest and other
contingencies.
(3) Exclusive of shares subject to convertible securities, options, and
warrants including shares offered by the selling stockholders.
(4) Assumes conversion of all convertible securities and exercise of all
warrants owned by selling stockholders in offering and concurrent
offering.
3
Plan of distribution Sales of the shares may be made by selling
stockholder in the open market
or in privately negotiated
transactions.
Use of proceeds We will not receive any proceeds from the
sale of shares owned by the
selling stockholder but may
receive proceeds upon exercise
of the warrants which will be
utilized for working capital.
4
Summary Financial Information
The following summary financial information is qualified by reference to, and
should be read in conjunction with, "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included elsewhere in this
Prospectus. The financial information set forth below is audited with respect to
the annual periods ended December 31, 2003 and December 31, 2002. The financial
information for the year ended December 31, 2002 are derived from restated
financial statements. See note 3 to the 2002 year-end audited Financial
Statements.
5
RISK FACTORS
You should carefully consider the following risk factors and all other
information contained in this prospectus before investing in our common stock.
We believe this section addresses all material risks specific to us. Investing
in our common stock involves a high degree of risk. Any of the following risks
could adversely affect our business, financial condition and results of
operations and could result in a complete loss of your investment.
We have experienced losses from operations in prior periods and may have losses
in the future.
We had no operations prior to November 2000 and increased losses in 2001 and
2002 including a loss of $11,944,922 for 2002. Although we had net income of
$4,379,160 in 2003, we sustained a loss of $ 859,555 for the three month period
ended March 31 2004. There is no assurance that we will operate profitably in
the future.
The establishment of our contact center business may result in losses or
reduction of income in the immediate future.
We have only recently commenced our contact center business and no have
significant operating history. Therefore our business and future prospects are
difficult to evaluate. You should consider the challenges, risks and
uncertainties frequently encountered by early-stage companies using new and
unproven business models in rapidly evolving markets. These include significant
start-up expenses, obtaining and performing contracts with clients, hiring and
retaining qualified personnel establishing a reputation in the industry and
acquiring, developing and managing contact centers, managing growth , and
obtaining additional capital if required. Moreover as we transition to our new
business we will devote fewer resources to our continuing ISP business. This
will result in a reduction in revenue from our ISP business which may not be
immediately replaced by revenues from our contact center business. There is no
assurance we will be able to enter into substantial arrangements with clients
for our contact center business or that we can develop call centers on terms
favorable to us or at all. Moreover, even if we enter into any such arrangements
or succeed in the development or acquisitions of call center assets, there is no
assurance that such arrangements with clients or any development or acquisitions
of contact center assets will be profitable. Moreover the transition to our new
business may result in loss of ISP revenues which we may not be able to replace
timely if at all.
6
We may in future require additional capital for our contact center business and
the failure to obtain additional capital may result in our inability to
implement future business plan on a timely basis or at all.
Our new contact center business requires additional personnel, the acquisition
and construction of contact centers for telemarketing and other operations, as
well as the purchase of additional equipment. We believe we have sufficient
capital to implement our initial plans for this business. We, however, may need
additional financing in the future for unforeseen factors, including:
o The timing of agreements for our offshore BPO services;
o the need to enhance our operating infrastructure or to
upgrade upon technological change;
o increasing costs, particularly in the Philippines;
o the existence of opportunities to acquire businesses or
technologies, or opportunities for expansion or introduce
new services; and
o increased competition and competitive pressures.
If our capital resources are insufficient to satisfy our liquidity requirements,
we may seek to sell additional equity or debt securities or obtain other debt
financing. The sale of additional equity securities or convertible debt
securities would result in additional dilution to our stockholders. Additional
debt would result in increased expenses and could result in covenants that
restrict our operations. We may be unable to secure financing in sufficient
amounts or on terms acceptable to us, if at all, in which case we may not have
the funds necessary to finance our ongoing capital requirements or execute our
business strategy.
A reversal of industry trends toward offshore outsourcing due to negative public
reaction in the United States and recently proposed legislation may adversely
affect demand for our services.
Our business depends in large part on U.S. industry trends towards outsourcing
business processes offshore. The trend to outsource business processes may not
continue and could reverse. Offshore outsourcing has become a politically
sensitive topic in the United States, particularly in the light of the upcoming
Presidential election. Recently, many organizations and public figures have
publicly expressed concerns about a perceived association between offshore
outsourcing providers and the loss of jobs in the United States. In addition,
there has been recent publicity about the negative experience of certain
companies that use offshore outsourcing current or prospective clients may elect
to perform such services themselves or may be discouraged from transferring
these services to offshore providers to avoid any negative perception that may
be associated with using an offshore provider. Any slowdown or reversal of
existing industry trends would harm our ability to compete effectively with
competitors that operate out of facilities located in the United States.
7
A variety of federal and state legislation has been proposed that, if enacted,
could restrict or discourage U.S. companies from outsourcing their services to
companies outside the United States. For example, legislation has been proposed
that would require offshore providers to identify where they are located. In
addition, it is possible that legislation could be adopted that would restrict
U.S. private sector companies that have federal or state government contracts
from outsourcing their services to offshore service providers. Any expansion of
existing laws or the enactment of new legislation restricting offshore
outsourcing may adversely impact our ability to do business with U.S. clients,
particularly if these changes are widespread.
Our operating results may fluctuate significantly and could cause the market
price of our common stock to fall rapidly.
Our revenues and operating results are difficult to predict and may fluctuate
significantly from quarter to quarter due to a number of factors, including:
o the addition or loss of a clients, including major clients,
and change in volume of services provided to our major
clients;
o The introduction of new or enhanced services;
o long sales cycles and fluctuations in sales cycles;
o changes in our pricing policies or those of our competitors,
as well as increased price competition in general;
We are subject to risks arising from our operations in the Philippines.
Substantially all of our contact center operations will be in the Philippines.
We are exposed to a number of significant risks associated with our operations
in the Philippines, including the following:
o Wages for employees in the Philippines are increasing at a
faster rate than for our U.S. employees, which could result
in increased costs to employ our outsourcing center
professionals.
o We are faced with competition in the Philippines for
outsourcing center professionals, and we expect this
competition to increase as additional BPO companies enter the
market and expand their operations. In particular, there may
be limited availability of qualified middle and upper
management candidates. This could increase our costs and
turnover rates.
o The Philippines continues to experience low growth in its
gross domestic product, significant inflation, currency
declines and shortages of foreign exchange. These
conditions could create economic instability that could harm
businesses operating in the Philippines.
o We have benefited from an excess of supply over demand for
college graduates in the Philippines. If this favorable
imbalance changes, it could affect the availability or cost
of qualified professionals, who are critical to our
performance.
8
o All of our revenues are denominated in U.S. dollars, and a
substantial portion of our costs are incurred and paid in
Philippine pesos, and we are therefore exposed to the risk of
an increase in the value of the Philippine peso relative to
the U.S. dollar, which would increase our expenses. We do not
currently engage in any transactions as a hedge against risk
of loss due to foreign currency fluctuations.
o We are exposed to the risk of rental and other cost increases
due to inflation in the Philippines, which has historically
been at a much higher rate than in the United States.
o The Philippines periodically experiences civil unrest and
terrorism and U.S. companies in particular may experience
greater risk. We are not insured against terrorism risks.
o A favorable business climate in the Philippines could change
the result in adverse changes to tax, regulatory and other
legal requirements which could increase our operating
costs, increase our exposure to legal and business risks and
make it more difficult.
o We have benefited from significant government assistance in
the Philippines, including the grant of income tax holidays
and preferential tax treatments under our registrations
with the Philippine Board of Investments, or BOI, and
Philippine Economic Zone Authority, or PEZA, and changes to
the country's educational curriculum in order to attract
foreign investment in specified sectors including the
outsourcing industry. Despite these benefits, the Philippine
national and local governments could alter one or more of
these beneficial policies and the Philippine legislature
could amend the laws granting preferential tax treatment. The
elimination of any of the benefits realized by us from our
Philippine operations, including tax incentives, could result
in increased operating expenses and impair our competitive
advantages over BPO companies based outside of the
Philippines.
We anticipate that we will encounter a long sales and implementation cycle
requiring significant resource commitments by our clients, which they may be
unwilling or unable to make.
The implementation of our service involves significant resource commitments by
us and our clients. We expend substantial time and money educating potential
clients as to the value of our services and assessing the feasibility of
integrating our systems and processes with theirs. The potential client's senior
management and a significant number of client personnel must evaluate the
proposal in various functional areas, each having specific and often conflicting
requirements. Despite the significant expenditures of funds and management
resources, the potential client may not engage our services. Our sales cycle
generally ranges up to six to twelve months or longer. Failure to close may have
a negative impact on revenue and income as these resources could otherwise be
used for a paying client. The following factors enter into a client's decision.
o Our clients' alternatives to our services, including their
willingness to replace their internal solutions or existing
vendors;
o Our clients' budgetary constraints, and the timing of our
clients' budget cycles and approval processes;
9
o Our clients' willingness to expend the time and resources
necessary to integrate their systems with our systems and
network; and
o The timing and expiration of our clients' current outsourcing
agreements for similar services.
When we are engaged by a client after the sales process, it takes from four to
six weeks to integrate the client's systems with ours, and up to three months
thereafter to ramp-up our services to the client's requirements.
We may not be able to manage our growth effectively.
Since we commenced our contact center business we have expanded rapidly and
intend to maintain our growth focus. Continued growth could place a strain on
our management, operations and financial resources. Our infrastructure,
facilities and personnel may not be adequate to support our future operation or
to adapt effectively to future growth. As a result, we may be unable to manage
our growth effectively, in which case our operating costs may increase at a
faster rate than the growth in our revenues, our margins may decline and we may
incur losses.
In order to manage our growth successfully, we must
o Maintain the hiring, training and management necessary to ensure the
quality and responsiveness of our services;
o expand and enhance our administrative and technical infrastructure,
facilities and capacities to accommodate increased call volume and
other customer management demands; and
o Continue to improve our management, financial and information
systems and controls.
We may experience significant employee turnover rates in the future and we may
be unable to hire and retain enough sufficiently trained employees to support
our operations.
The BPO industry is very labor intensive and our success depends on our ability
to attract, hire and retain qualified employees. We compete for qualified
personnel with companies in our industry and in other industries and this
competition is increasing in the Philippines as the BPO industry expands. Our
growth requires that we continually hire and train new personnel. The BPO
industry, including the customer management services industry, has traditionally
experienced high employee turnover. A significant increase in the turnover rate
among our employees would increase our recruiting and training costs and
decrease operating efficiency and productivity, and could lead to a decline in
demand for our services. If this were to occur, we would be unable to service
our clients effectively and this would reduce our ability to continue our growth
and operate profitably. We may be unable to continue to recruit, hire, train and
retain a sufficient labor force of qualified employees to execute our growth
strategy or meet the needs of our business.
10
Our operations could suffer from telecommunications or technology downtime,
disruptions or increased costs.
We are highly dependent on our computer and telecommunications equipment and
software systems. In the normal course of our business, we must record and
process significant amounts of data quickly and accurately to access, maintain
and expand the databases we use for our services. We are also dependent on
continuous availability of voice and electronic communication with customers. If
we experience interruptions of our telecommunications network with our clients,
we may experience data loss or a reduction in revenues. These disruptions could
be the result of errors by our vendors, clients or third parties, electronic or
physical attacks by persons seeking to disrupt our operations, or the operations
of our vendors, clients or others. For example, we currently depend on two
significant vendors for facility storage and related maintenance of our main
technology equipment and data at our U.S. data centers. Any failure of these
vendors to perform these services could result in business disruptions and
impede our ability to provide services to our clients. A significant
interruption of service could have a negative impact on our reputation and could
lead our present and potential clients not to use our services. The temporary or
permanent loss of equipment or systems through casualty or operating malfunction
could reduce our revenues and harm our business.
We could cause disruptions to our clients' business from inadequate service. Our
insurance coverage may be inadequate.
Failures to meet service requirements of a client could disrupt the client's
business and result in a reduction in revenues or an increase in charges or a
claim for substantial damages against us. For example, some of our agreements
may have standards for service that, if not met by us, may result in lower
payments to us. In addition, because many of our projects are business-critical
projects for our clients, a failure or inability to meet a client's expectations
could seriously damage our reputation and affect our ability to attract new
business. To the extent that our contracts contain limitations on liability,
such contracts may be unenforceable or otherwise may not protect us from
liability for damages. While we maintain general liability insurance coverage,
including coverage for errors and omissions, this coverage may be inadequate to
cover one or more large claims, and our insurer may deny cover.
Unauthorized disclosure of sensitive or confidential client and customer data,
whether through breach of our computer systems or otherwise, could expose us to
protracted and costly litigation and cause us to lose clients.
We may be required to collect and store sensitive data in connection with our
services, including names, addresses, social security numbers, credit card
account numbers, checking and savings account numbers and payment history
records, such as account closures and returned checks. If any person, including
any of our employees, penetrates our network security or otherwise
misappropriates sensitive data, we could be subject to liability for breaching
contractual confidentiality provisions or privacy laws. Penetration of the
network security of our data centers could have a negative impact on our
reputation and could lead our present and potential clients to choose other
service providers.
11
We may make acquisitions that prove unsuccessful or divert our resources.
We intend to consider acquisitions of other companies in our industry that could
complement our business, including the acquisition of BPO companies with
expertise in other industries and clients that we do not currently serve. We
have little experience in completing acquisitions of other businesses, and we
may be unable to successfully complete an acquisition. If we acquire other
businesses, we may be unable to successfully integrate these businesses with our
own and maintain our standards, controls and policies. Acquisitions may place
additional constraints on our resources by diverting the attention of our
management from existing operations. Through acquisitions, we may enter markets
in which we have little or no experience. Any acquisition may result in a
potentially dilutive issuance of equity securities, the incurrence of debt and
amortization of expenses related to intangible assets, all of which could lower
our margins and harm our business.
We utilize a third-party vendor for services related to strategic planning and
implementation of our contact center business.
Through our principal stockholder, of which Martin Miller, our Chairman of the
Board, is a principal owner, we have retained an independent consulting firm to
assist us primarily in establishing a new direction for our business and its
personnel. The consulting firm assists us in identifying international
opportunities, including pinpointing locations for call centers, negotiating
transactions for our new business, implementing our new strategy and general
supervision.
Our clients may adopt technologies that decrease the demand for our services,
which could reduce our revenues and seriously harm our business.
We target clients with a high need for our customer management services However,
over time, our potential clients may adopt new technologies that decrease the
need for live customer interaction, such as interactive voice response,
web-based self-help and other technologies used to automate interactions with
customers. The adoption of such technologies could reduce the demand for our
services, pressure our pricing, cause a reduction in our revenues and harm our
business.
Our independent auditors report with respect to our 2003 consolidated financial
statements.
12
Our independent auditors report have not expressed a going concern opinion with
respect to our 2003 consolidated financial statements includes an emphasis on
Note 3 to the financial statements for a description of profitability and
liquidity issues. We cannot give assurance that any possible adverse
consequences will not continue as a result of the removal of such qualification
from our 2003 financial statements.
We may be required to write down Goodwill which will result in the recognition
of substantial expenses.
Our assets include $3,360,272 of goodwill. This reflects the unamortized portion
of the difference between the value of the consideration paid to acquire the
minority portion of National Online and the book value of the assets of National
Online at the time of acquisition. Under present accounting rules this asset may
be written down, in whole or in part, if it is unlikely that the full amount of
excess value will be realized. We have not written down any amount of this
goodwill in 2003 but if our ISP revenues continue to decline we may be required
to do so in 2004. Any write down in the future will be treated as an expense and
reduce our income.
A proceeding instituted by the Federal Trade Commission Relating to Our ISP
business has adversely impacted our business and financial position and has not
been finally settled and could have further impact on revenues and income.
On October 30, 2003, the Federal Trade Commission or FTC instituted an action in
federal district court against us and certain of our subsidiaries. The action
sought to enjoin alleged failure by certain of our ISP subsidiaries to comply
with regulations relating to the conversion of a trial customer to a paying
customer. We market our ISP services by offering a trial period followed by pay
periods. In connection with the action the FTC obtained an ex parte temporary
restraining order, a freeze on our assets, and the appointment of a temporary
receiver. This ex-parte order prevented us from marketing and billing our ISP
services and deprived us of substantial assets. We therefore experienced
significant business disruption, incurred substantial expenses and experienced a
reduction of our working capital. While we believed we complied with the law and
the proceeding was unwarranted, on November 21, 2003, we entered into a
stipulated preliminary injunction, without any admission or finding of
wrongdoing. As a result, we were able to resume business subject to procedures
set forth in the stipulation (substantially all of which we had already
followed) and the oversight of a monitor. The appointment of the receiver was
terminated and replaced by a monitor and the asset freeze was lifted except that
a portion of our assets were held in escrow against future customer refunds. It
is impossible, at this time, to determine the full impact of this action but the
order has resulted in a reduction of our revenue and income in the fourth
quarter of 2003 and first quarter of 2004. The reduction of revenues and asset
freeze and escrow (even though a majority of the funds were released) in turn
resulted in working capital issues. This caused us to initiate cost cutting
measures and delayed the timetable for implementing our new business direction.
We are presently negotiating the terms of a final permanent injunction. We
cannot predict the terms of the final order or when the terms will be finalized.
We recently obtained financing which alleviated our working capital situation
and enabled us to proceed with the timely development of contact centers in the
Philippines.
13
Government regulation and customer complaints relating to our ISP business
entail costly compliance that have lead to regulatory proceedings that are
expensive to defend and may result in adverse judgments and detrimental
publicity.
Our subsidiaries are subject to the oversight of various governmental agencies,
including the Federal Trade Commission and similar state agencies. These
agencies and other federal and state agencies regulate our marketing activities.
We believe we are in material compliance with all these regulations. The most
significant of these regulations relates to free to pay conversion rules
designed to prevent "cramming" or the unauthorized billing of a customer. To
guard against violation of these regulations, we, at substantial expense, have
imposed strict controls on our in house and independent contact center sales
representatives. Nevertheless, proceedings have been commenced against us. We
are subject to a Stipulated Preliminary Injunction entered into in a proceeding
instituted by the Federal Trade Commission to prohibit alleged violations by us
of the free to pay conversion rules. While we denied all liability we entered
into the stipulation to resume business after a temporary restraining order. See
Risk Factor "A proceeding instituted by the Federal Trade Commission has
adversely impacted our business and financial position" for a discussion of the
consequences of this proceeding. During 2003, Missouri and North Carolina sought
a permanent injunction to bar us from violating the cramming rules. In both
states, we voluntarily entered into orders barring us from cramming. We did so
since we do not engage in cramming practices and neither state is a source of
significant revenue. We intend to contest the imposition of a permanent
injunction in these states. We are also subject to investigatory subpoena
inquiries in Florida, Texas, Kansas, and Minnesota and are cooperating fully in
each case. We have not been affected by the federal or state "do not call"
regulations because our ISP subsidiaries only call business telephone numbers
and these types of numbers are not subject to these regulations. We cannot
predict the effect of these rules on our outsourcing business. In the future we
may experience substantial adverse consequences on our ISP operations if we were
found to have materially violated any regulations. In that event we may be fined
a substantial amount, and may be required to cease or modify our business plans
or otherwise limit operations. Moreover, we could also be adversely affected if
we are unable to meet any material future change in regulations. See "Legal
Proceedings."
Our ISP business depends upon third-party vendors for billing and collection of
our accounts receivable.
The customers of our ISP subsidiaries are billed through local exchange carriers
or LECS. Our subsidiaries rely on third party clearing agents or billing houses
for collection of our receivables from the LEC. We have material arrangements
with two billing houses, ACI Billing Services, Inc., eBillit, Inc. a.k.a Payment
One . While we believe there are potential replacements for our present billing
houses, there is no assurance we will be able to find adequate replacements upon
suitable terms. Because LECs have a monopoly, or near monopoly, on phone service
in an area, the loss of a LEC may not be replaced.
14
In early 2003, a LEC and billing agent limited or declined any dealings with
certain of our ISP subsidiaries because of the number of complaints received.
SBC, a LEC, refused to deal with us directly. As a result our market of
potential customers was reduced because for the most part we could not solicit
in, the geographic area operated by this LEC. We were able in 2003, however, to
obtain sufficient substitute customers in other areas to maintain revenue
growth. The loss of an additional LEC could have substantial adverse
consequences on our revenues and profitability. In addition our receivables
collected by clearing agents are not segregated, we could lose these funds upon
any bankruptcy of a clearing agent.
If we do not successfully implement our contact center business, we must
increase our ISP customer base or face possible future losses and liquidity
problems.
While we intend to continue to operate our ISP business we will concentrate our
resources on our new business. As a result, there is significant likelihood that
we may not be able to grow or maintain our ISP business. If we do not
successfully implement our new business, we will be dependent on our existing
ISP business which has declined. Due to attrition of customers in our ISP
business, we have constantly sought to retain our existing customer base and to
find new customers through telemarketing efforts and with the introduction of
new products. If our new business is not successful and we do not replace lost
ISP customers our future revenues and income may be reduced.
We serve markets that are highly competitive and we may be unable to compete
with businesses that have greater resources than we do.
We face significant competition for outsourced business process services and
expect that competition will increase. We believe that, in addition to prices,
the principal competitive factors in our markets are service quality, sales and
marketing skills, the ability to develop customized solutions and technological
and industry expertise. While numerous companies provide a range of outsourced
business process services, we believe our principal competitors include our
clients' own in-house customer service groups, including, in some cases,
in-house groups operating offshore, offshore outsourcing companies and
U.S.-based outsourcing companies. The trend toward offshore outsourcing,
international expansion by foreign and domestic competitors and continuing
technological changes will result in new and different competitors entering our
markets. These competitors may include entrants from the communications,
software and data networking industries or entrants in geographic locations with
lower costs than those in which we operate.
We have existing competitors for our BPO business, and may in the future have
new competitors, with greater financial, personnel and other resources, longer
operating histories, more technological expertise, more recognizable names and
more established relationships in industries that we currently serve or may
serve in the future. Increased competition, our inability to compete
successfully against current or future competitors, pricing pressures or loss of
market share could result in increased costs and reduced operating margins,
which could harm our business, operating results, financial condition and future
prospects.
15
Many companies offer internet provider services and other products and services
similar to those offered by us. Many of these firms are well established, have
reputations for success and have significantly greater financial, marketing,
distribution, personnel, and other resources than us. Further, there can be no
assurance that we will not experience price competition, and that such
competition may not adversely affect our financial position and results of
operations adversely affect our revenues and profitability.
We have entered into substantial transactions with our Principal Stockholders.
Trans Voice L.L.C, the owner of over 50% of our common stock, has entered into
an agreement as of April 2003 to obtain a third party to provide strategic
planning supervision, and other services to us primarily for our new business.
Martin Miller, our Chairman of the board, is the beneficial owner of fifty
percent of this entity. Amounts paid to Trans Voice are a pass-through and are
meant to reimburse Trans Voice for payments it makes or is obligated to make to
third party vendors under that agreement. We also are a party to an Amended and
Restated Payment Agreement with Trans Voice Investments, Inc. whereby we pay
Trans Voice, L.L.C., as assignee of Trans Voice Investments, Inc., $150,000 per
month and pay Trans Voice Investments, Inc. $1.00 for every customer over
100,000. This agreement was originally entered into in consideration for
services rendered to us by Trans Voice Investments, Inc., the parent company of
Trans Voice L.L.C. This agreement and subsequent modifications were entered into
when Trans Voice L.L.C was not one of our principal shareholders. However, one
of the principal holders was an officer prior to the execution of the original
agreement. While we believe the transaction referred to was fair to us they were
not necessarily negotiated at arms length. Future transactions with principal
stockholder officer or director will need to be approved by the majority of our
independent directors.
Stock ownership of our principal stockholders could delay or prevent stockholder
actions.
Messrs. Martin Miller and Stanley Myatt beneficially own over 50% of our
outstanding common stock and may be able to control decisions of our
stockholders. Their ownership may also have the effect of delaying, deferring or
preventing a change in our control and make transactions that could give our
public, minority stockholders the opportunity to realize a premium over the
then-prevailing market price for shares of common stock more difficult or
impossible.
We have a substantial number of shares that may become freely tradable and could
therefore result in a reduced market price.
As of March 26, 2004, we had an aggregate of 11,158,338 shares of our common
stock issued and outstanding, of which approximately 7,108,338 shares are
"restricted securities". These shares may be sold only in compliance with Rule
144 under the Securities Act of 1933, as amended, or other exemptions from
registration requirements of the Securities Act. Rule 144 provides, in essence,
that a person holding restricted securities for a period of one year after
payment therefor may sell, in brokers' transactions or to market makers, an
amount not exceeding 1% of the outstanding class of securities being sold, or
the average weekly reported volume of trading of the class of securities being
sold over a four-week period, whichever is greater, during any three-month
period. Persons who are not our affiliates and who had held their restricted
securities for at least two years are not subject to the volume or transaction
limitations. Substantially all of our presently issued shares will be capable of
sale pursuant to Rule 144 subject to the foregoing limitations. In addition we
have a substantial number of warrants and convertible securities. Over 6,000,000
of these shares will be included in an amended registration statement to be
filed with the Securities and Exchange Commission. Over 7,800,000 in restricted
shares outstanding or subject to preferred stock are 144 eligible or will be by
July 2002. The sale of a significant number of these shares in the public market
may adversely affect prevailing market prices of our securities.
16
If our shares are not listed on a stock exchange or Nasdaq, the trading of our
securities may be subject to restriction.
We have applied to have our shares of Common Stock listed on the American Stock
Exchange. If our application is denied, our stock will continue to be traded on
the OTC Bulletin Board. Trading volume of OTC Bulletin Board stocks have been
historically lower and more volatile than stocks traded on an exchange or Nasdaq
Stock Market. In addition we may be subject to rules of the Securities and
Exchange Commission that impose additional requirements on broker-dealers when
selling penny stocks to persons other than established customers and accredited
investors. At the moment we do not believe our securities are subject to these
rules because our average revenues during the last three years exceeded
$6,000,000. In general, an accredited investor is a person with assets in excess
of $1,000,000 or annual income exceeding $200,000 individually, or $300,000
together with his or her spouse. The relevant Securities and Exchange Commission
regulations generally define penny stocks to include any equity security not
traded on an exchange or Nasdaq with a market price (as defined in the
regulations) of less than $5 per share. Under the penny stock regulations, a
broker-dealer must make a special suitability determination as to the purchaser
and must have the purchaser's prior written consent to the transaction. Prior to
any transaction in a penny stock covered by these rules, a broker-dealer must
deliver a disclosure schedule about the penny stock market prepared by the
Securities and Exchange Commission. Broker-dealers must also make disclosure
concerning commissions payable to both the broker-dealer and any registered
representative and provide current quotations for the securities. Finally,
broker-dealers are required to send monthly statements disclosing recent price
information for the penny stock held in an account and information on the
limited market in penny stocks.
If our common stock were to be subject to penny stock rules, these rules may
discourage broker-dealers from effecting transactions in our common stock or
affect their ability to sell our securities. As a result, purchasers and current
holders of our securities could find it.
We do not intend to or can we pay dividends on our common stock.
We have not paid any dividends on our common stock. Our notes prohibit the
payment of dividend. There are no plans to declare dividends in the immediate
future but we may, depending upon permission of the noteholders, from time to
time, declare dividends in stock or cash. Our Series A Convertible Preferred
Stock provides for 8% cumulative dividends to be paid annually.
17
Our stock price, like that of many small companies, has been and may continue to
be volatile.
We expect that the market price of our common stock will fluctuate as a result
of variations in our quarterly operating results and other factors beyond our
control. These fluctuations may be exaggerated if the trading volume of our
common stock is low.
18
FORWARD-LOOKING STATEMENTS
Certain statements contained herein may constitute "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995. Such
forward looking statements are subject to various known and unknown risks and
uncertainties and We caution you that any forward-looking information provided
by or on behalf of the us is not a guarantee of future performance. Our actual
results could differ from those anticipated by such forward-looking statements
due to a number of factors, some of which are beyond our control, including (i)
the timing of significant orders for our services, (ii) changes in applicable
accounting principles, (iii) difficulties or delays in implementing our service
offerings, (iv) failure to achieve sales, marketing and other objectives, (v)
construction delays of new call centers, (vi) delays in our ability to develop
new products and services and market acceptance of new products and services,
(vii) rapid technological change, (viii) loss of significant customers, (ix)
risks inherent in conducting business abroad, (x) currency fluctuations, (xi)
fluctuations in business conditions and the economy, (xii) our ability to
attract and retain key management personnel, (xiii) the marketplace's acceptance
of our service offerings, (xiv) our ability to continue the growth of its
support service revenues through additional technical and customer service
centers, (xv) our ability to expand our global presence through strategic
alliances and selective acquisitions, (xvi) our ability to establish a
competitive advantage through sophisticated technological capabilities, (xvii)
the ultimate outcome of certain regulatory actions, and (xviii) our continued
ability to attract and obtain adequate financing (xix) other risk factors listed
from time to time in our registration statements and reports as filed with the
Securities and Exchange Commission. All forward-looking statements which may be
contained in this registration statement are made as of the date that such
statements are originally published or made, and we undertake no obligation to
update any such forward-looking statements. For those statements, we claim the
protection of the safe harbor for forward-looking statements contained in
Section 27A of the Securities Act, Section 21E of the Exchange Act, and the
Private Securities Litigation Reform Act of 1995.
USE OF PROCEEDS
We will not receive any proceeds from the offering of the selling stockholders.
If any of the warrants are exercised we may receive the exercise price and will
utilize these proceeds for working capital.
CAPITALIZATION
The following table sets forth our capitalization as of March 31, 2004
19
o -on an actual basis;
o -on a pro forma basis to give effect to a our recent financings and
other transactions
o -on a pro forma as adjusted basis to assume the exercise or
conversion of all shares subject to notes and warrants held by
selling shareholders.
You should read the following table together with "Management's discussion and
analysis of financial condition and results of operations" and our consolidated
financial statements and the notes to those statements appearing elsewhere in
this prospectus.
ACTUAL Pro Forma Actual Pro forma
As adjusted
( dollars in thousands)
-------------------------------------------------------
Cash and cash equivalents
1) --$ -----------
Long-term liabilities
convertible preferred stock,
$.001 par value: -------------
shares authorized: ------------
-Series A--shares designated;
sharesissued and
outstanding actual -------------
Stockholders' equity (deficit):
-Common stock, $.001 par value:
shares authorized
shares issued and
outstanding ( shares issued
and outstanding, pro forma
; and 10,962,663 shares issued
and outstanding,
pro forma as adjusted) -------------
20
-Additional paid-in capital -------------
-Accumulated deficit --- -) ---------
-Total stockholders equity-----) ---------
Total capitalization --$ -----------
(1) For purposes of the table we treat as outstanding
shares we were obligated to issue but for which no
certificates were issued.
(2) Does not include shares of common stock reserved for
issuance upon the exercise of options and warrants and
shares issuable upon conversion of our outstanding
preferred shares and notes.; does not include shares
issued subsequent to March31 2004.
(3) Assumes all preferred shares and notes are converted
and all warrants exercised. Reflects net proceeds of
private placement for shares of preferred and notes
converted and the purchase price to be paid upon
exercise of warrant.
NEED HELP FROM FINANCIAL SIDE cap table
MARKET FOR COMMON EQUITY
AND RELATED STOCKHOLDER MATTERS
MARKET INFORMATION
Our Common Stock is presently quoted, under the symbol "EPXR," on the OTC
Bulletin Board. Prior to January 2003, our symbol was "GAHI". In January 2003,
the symbol was changed as a result of our name change. Set forth below are the
high and low closing bid quotations for our common stock for each quarter of the
last two full fiscal years and a portion of the current year, as reflected on
the electronic bulletin board. The quotations listed below represent prices
between dealers and do not include retail mark-up, markdown or commission, and
there can be no assurance that they represent actual transactions.
21
Fiscal year 2004
Quarter High Low
1st 5.15 2.96
2nd
(Through June 14, 2004) 5.29 3.20
Fiscal year 2003
1st $4.15 $1.75
2nd $8.85 $2.75
3rd $6.45 $3.55
4th $6.40 $2.75
Fiscal Year 2002
1st $3.50 $0.68
2nd $0.83 $0.29
3rd $0.31 $0.31
4th $1.95 $0.28
STOCKHOLDERS.
As of March 26, 2004 there were approximately 62 holders of record of our common
stock. Because a substantial portion of our shares are held by a depository
company in nominee name, we believe the number of beneficial owners of the
securities is substantially greater than 62.
DIVIDENDS
We have not paid any dividends on our common stock. Our notes prohibit the
payment of dividends. There are no plans to declare dividends in the immediate
future but we may, depending upon permission of the noteholders, from time to
time, declare dividends in stock or cash. Our Series A Convertible Preferred
Stock provides for 8% cumulative dividends to be paid annually.
22
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The following table presents selected historical consolidated financial data as
of, and for the years ended, December 31, 1999, 2000, 2001, 2002 and 2003, which
has been derived from our audited consolidated financial statements. Our
consolidated financial statements as of, and for the years ended, December 31,
2002 and 2003 were audited by Rachlin Cohen & Holtz LLP and our consolidated
financial statements as of, and for the years ended, December 31, 1999, 2000 and
2001 were audited by another auditor. You should read this information together
with "Summary historical consolidated financial data," "Management's discussion
and analysis of financial condition and results of operations," and our
consolidated financial statements and related notes for the years ended December
31, 2001, 2002 and 2003, which are included elsewhere in this prospectus.
Historical results are not necessarily indicative of the results to be expected
in the future.
Selected Consolidated Financial Data (unaudited)
[Enlarge/Download Table]
Year Ended December 31,
--------------------------------------------------------------------------------
2003 2002 2001 2000 1999
-------------- -------------- -------------- -------------- --------------
Consolidated Statements of Operations Data:
Revenues $ 36,404,803 $ 26,250,851 $ 1,189,723 $ 13,387 $ --
Income (Loss) from Continuing Operations 4,379,160 (11,901,604) (3,251,788) (281,072) (38,374)
Gain (Loss) from Discontinued Operations -- (43,318) 267,190 -- --
-------------- -------------- -------------- -------------- --------------
Net Income (Loss) per Common
Share - Diluted:
Continuing operations $ 0.16 $ (1.13) $ (0.42) $ (0.07) $ (0.01)
Discountinued operations -- -- 0.03 -- --
-------------- -------------- -------------- -------------- --------------
Net income (loss) $ 0.16 $ (1.13) $ (0.39) $ (0.07) $ (0.01)
============== ============== ============== ============== ==============
[Enlarge/Download Table]
December 31,
-----------------------------------------------------------------------------
2003 2002 2001 2000 1999
---------- ---------- ---------- ---------- ----------
Consolidated Balance Sheet Data:
Working capital 2,954,188 (3,638,292) (3,495,570) (560,639) (7,775)
Total assets 12,982,794 8,583,145 4,438,294 171,856 --
Current portion of long-term debt 121,513 483,786 2,649,000 285,000 --
Notes payable, long-term debt and common stock
to be issued 2,671,953 2,353,151 52,726 22,212 30,599
Stockholders' equity (deficiency) 5,397,988 8,583,145 47,438 (321,112) (38,374)
23
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
Historical
While we are primarily a contact center company, substantially all our revenue
has been derived from our ISP operations. In March 2001, we acquired National
Online Services, Inc. ("NOL"), which developed and marketed internet provider
services ("ISP") for small businesses. The operations of NOL commenced during
2001. We continued and expanded the operations of NOL as well as other ISP
subsidiaries operating similar businesses primarily with funds generated from
operations, making considerable expenditures for staffing and infrastructure. .
In the fourth quarter of 2003, we determined to concentrate our efforts on
implementing the change in direction of our business. We have now focused our
energies on our contact center business providing services for third parties
using facilities we operate or will develop or acquire. Today, our contact
center business represents a small percentage of our revenue, but this business
represents a significant focus of management and capital. The effect of this
transition on our revenues, income and capital requirements is discussed below.
24
ACCOUNTING ISSUES
Restatement
We have restated our previously issued financial statements for 2002 as follows:
o Acquisition of Savon and a 80% interest in National Online have been
restated to reflect the requirement of staff accounting bulletin No. 48 and
record those acquisitions at historical cost. As a result the financial
statements have been restated to remove all goodwill, goodwill amortization
and impairment charges with respect to these transactions. That portion of
the goodwill relating to the acquisition of a minority interest in NOL
remained.
o In 2002 we entered into an agreement to restructure certain debt to a
stockholder. We have determined that the transaction should have been
treated as the issuance of a new note with a loss on debt extinguishment
which includes the value of warrants as of the date of grant.
o We have recorded the new note resulting from the debt restructuring at fair
value net of a discount.
The foregoing restatement is described in further detail in Note 2 to the
financial statements.
Accounting Policies and Procedures
On an on-going basis, management evaluates its estimates and judgments,
including those related to revenue recognition, allowance for uncollectible
amounts, impairments of intangible assets, recognition of deferred income tax
items and stock based compensation, bad debts and intangible assets. Management
bases its estimates and judgments on historical experience and on various other
factors that are believed to be reasonable under the circumstances, the results
of which form the basis for making judgments about the carrying values of assets
and liabilities that are not readily apparent from other sources. Actual results
may differ from these estimates under different assumptions or conditions.
Management believes the following critical accounting policies, among others,
affect its more significant judgments and estimates used in the preparation of
its consolidated financial statements.
Revenue recognition
Our revenues are derived primarily from our ISP business through fees for
providing small businesses with Internet access, websites and e-mail addresses
through reselling dial-up access. Customers are billed monthly, following a
thirty day free trial, and the revenue is recorded over the period in which the
services are provided. Deferred revenue represents the unearned, billed revenue
at the end of an accounting period. We contract with external entities for
billing and collection services. Those entities require certain holdbacks and
reserves be maintained to allow for the possibility that amounts will not be
collected, refunds will be made or adjustments to customer accounts will be
allowed. These holdbacks and reserves are included in accounts receivable. We
provide an allowance for lack of collectability of these amounts approximately
equal to fifty percent of the amounts held or reserved. This allowance is
estimated and adjusted quarterly based on historical experience.
25
Impairment of intangible assets
In connection with the acquisition of a minority interest in National Online we
recorded goodwill. SFAS No. 142 "Goodwill and Other Intangible Assets" requires
that goodwill no longer be amortized, but rather be evaluated for possible
impairment at least annually. Our policy calls for the assessment of any
potential impairment whenever events or changes in circumstances indicate that
the carrying value may not be recoverable or at least annually. If an evaluation
of undiscounted cash flows indicates impairment, the asset is written down to
its estimated fair value which is based on discounted cash flows. We did not
recognize any impairment charges for goodwill in the years ended December 31,
2003 and 2002 or for the periods March 31, 2004 and 2003
Deferred income taxes
Through December 31, 2003 we incurred significant net operating losses for
income tax purposes of December 31, 2003 we had net operating loss carry
forwards available of approximately $19 million. As a result of ownership
changes which occurred in June 2002, our operating tax loss carry forwards are
subject to certain limitations.
In addition, tax laws require items to be included in our tax return at
different times than those items are reflected in our financial statements some
of these differences are permanent and some differences reverse over time. These
timing differences, as well as the net operating loss carry forwards, create
deferred tax assets and liabilities. Deferred tax assets generally represent
items that can be used as a tax deduction in our tax return in future years. We
establish valuation allowances for our deferred tax assets when we believe
expected future taxable income to offset those deductions is not likely. Based
on our historical earnings history, we have established a 100% valuation
allowance for our net deferred tax assets.
Stock based compensation
Historically we have used stock options and warrants as a method of compensating
employees, contractors and creditors for services provided. We account for
options and warrants granted to nonemployees at fair value. We account for
options granted to employees using the intrinsic value method. The intrinsic
method measures the value of the option as the difference between the exercise
price of the option and our stock price on the date of grant. Usually we do not
recognize any compensation expense in connection with employee options as the
exercise price is generally equal to the stock price on the date of grant. Under
the fair value method we measure the option or warrant at the date of grant
using the Black-Scholes valuation model. The model estimates the expected value
of the option or warrant based on a number of assumptions, such as interest
rates, our stock price, the expected life of the option or warrant and dividend
yield.
26
POSSIBLE IMPACT OF CERTAIN EVENTS UPON RESULTS OF OPERATIONS AND LIQUIDITY
Recent Federal Trade Commission Proceeding Relating to ISP Business
On October 30, 2003, the Federal Trade Commission instituted an injunction
action in federal district court against us and certain of our subsidiaries. The
action sought to enjoin alleged failures by certain of our ISP subsidiaries to
comply with regulations relating to the conversion of a trial customer to a
paying customer. In connection with the action the Commission obtained an ex-
parte temporary restraining order, a freeze on our assets, and the appointment
of a temporary receiver. This ex-parte order prevented us from marketing and
billing our ISP services and deprived us of substantial assets. We therefore
experienced significant business disruption, incurred substantial expenses and
experienced a reduction of our working capital. While we believed we complied
with the law and the proceeding was unwarranted, on November 21, 2003 we entered
into a stipulated preliminary injunction, without any admission or finding of
wrongdoing. As a result, we were able to resume business subject to procedures
set forth in the stipulation (substantially all of which we had already
followed) and the oversight of a monitor. The receiver was terminated and
replaced by a monitor and the asset freeze was lifted except that a portion of
our assets are held in escrow against future customer refunds. Most of this
amount has been returned. In February 2004 we received over $750,000 of the
escrow money and contemplated the lifting of restriction on over $400,000
relating to our foreign subsidiary. It is impossible, at this time, to determine
the full impact of this action. The proceeding has caused a reduction of our
revenue and income in the fourth quarter of 2003 and first quarter of 2004 and
resulted in substantial legal expenses. The asset freeze and escrow resulted in
significantly reduced working capital and delayed certain implementation our new
business direction and compelled us to initiate certain cost cutting measures.
We are presently negotiating the terms of a final permanent injunction. We
cannot predict the terms of the final order or when the terms will be finalized.
Contact Center Business
In 2003 we determined to change the direction of our business to that of a
contact center company providing services for third parties using facilities we
operate or will develop or acquire. In the fourth quarter 2003, management
determined that our efforts and capital should be focused on implementing this
change. We have hired additional executives and personnel for the development
and management of contact centers and to obtain sales for new services. We also
are incurring costs for due diligence, acquisition and physical improvements to
contact centers, as well as professional fees and travel in conjunction with the
establishment of these contact centers. In September 2003 we began to operate a
call center, located in the Metro Manila suburb of Alabang in the Philippines
which we acquired in 2004. We also have begun operations at our Eastwood
facility in the Spring of 2004. We have entered into and will explore entering
into new real estate and equipment leases for these and other centers of contact
center operations. We will have additional expenses for the development of these
contact centers The establishment of these operations will require the hiring of
a substantial number of employees and other operating expenses. Our general and
administrative expenses should increase substantially as these operations grow.
While we will continue to maintain our ISP business we will devote less
resources to marketing this business- - at times suspending marketing -as we
focus our attention to our contact center business. This, among other factors,
has resulted in a reduction in revenue from the ISP business which has not been
immediately replaced by revenues from our new business Therefore if we do not
have substantial revenues generated by new contact centers, we have, and may
continue to will incur losses.
27
Trends
The trend of our revenue and income over the next several quarters depends upon
several variables, some of which cannot at this time be ascertained
definitively. Revenue from ISP sources will decline as result of low and/or
suspended ISP marketing activity. Based on the current rate of attrition of ISP
customers we expect to derive significant revenues from our ISP business. We
expect future ISP revenues to have a gross profit margin consistent with this
quarter's results as there are low marketing costs and only a maintenance
customer service cost associated with this revenue.
Our contact center business revenue will increase with increasing seat
development, and business development efforts. The delay in revenue production
from the time a set of seats is completed is due to a number of factors,
including but not limited to; contracting with an appropriate customer to
utilize the seats, as well as the selection and training of qualified personnel.
Both are processes that take time and care for effective implementation.
During our initial phase of contact center operations we will incur development
and startup losses. Depending on obtaining new contracts and implementing
existing ones, we believe revenue from our contact centers will increase thereby
off setting lost ISP revenues in the future. We believe this will most likely
happen during the fourth quarter of this year to the first quarter of next year.
Because of the variables involved we can give no assurance that our projected
result will be met within the foregoing time frame or if at all.
Comparison of 1st Quarter 2004 to 1st Quarter 2003
General
Set forth below are comparisons of financial results for the quarters ended
March 31, 2004 and 2003. These comparisons are intended to aid in the discussion
that follows. This discussion and analysis should be read in conjunction with
the financial statements and related notes contained elsewhere in this report.
28
[Enlarge/Download Table]
March 31, 2004 March 31,2003 Changes % of Changes
-------------- ------------- ------- ------------
(Restated)
Item
Revenue 4,876,148 12,366,775 (7,490,627) (60.6)
Cost of Sales direct costs 1,304,354 5,983,628 (4,679,274) (78.2)
Gross Profit Margin 3,571,794 6,383,147 (2,811,353) (44.0)
Expense (exclusive of 4,110,546 3,724,705 385,841 10.4
Depreciation)
Depreciation 100,994 35,999 64,995 180.6
Interest Expense (215,887) (165,893) (49,994) 130.1
Net Income (Loss) (859,555) 1,976,550 (2,836,105) (13.5)
Cash, Accounts Receivable & prepaid
Expense, etc. 5,798,350 4,857,324 941,026 19.4
Property and Equipment 2,123,506 448,356 1,675,150 373.6
(Net of Depreciation)
Our revenues decreased from $ 12,366,775 in the first quarter of 2003 to
$4,876,148 in the first quarter of 2004. There is a correlation between the
marketing of our ISP services and future revenues (after the trial period) for
customers obtained during the marketing effort. Our telemarketing efforts for
the latter part of 2003 were reduced (particularly after the FTC proceeding) and
this caused a decrease in our revenue in subsequent periods including this first
quarter. There was a minimum of marketing for the first quarter of 2004 and
therefore we do not expect increased revenues in the second quarter of 2004.
Our cost of sales include: (1) the direct costs of acquiring a new customer such
as telemarketing and fulfillment costs and (2) the costs of maintaining our
customer base including customer care costs and telecommunication costs for our
internet provider services. The telemarketing and fulfillment costs are one time
charges incurred when a customer signs up and represent the most significant
component of cost of sales. Conversely, the costs of maintaining our customer
base represent a much smaller component of cost of sales but are an on going
cost. Our costs of sales in the first quarter of 2004 were approximately
$4,679,274 lower than costs in the first quarter 2003. This decrease resulted
because of a decline in telemarketing efforts due to our emphasis on our new
business direction as well as the effects of the FTC proceedings. The cost of
sales of 2003 reflects high telemarketing costs resulting form increased ISP
marketing efforts in the first quarter of 2003.
29
Our gross profit was $3,571,794 in the first quarter of 2004 compared to
$6,383,147 in the first quarter of 2003. The decrease in gross profit resulted
from lower sales notwithstanding a reduction in costs. Notwithstanding the
decrease in gross profit our gross profit margins increased substantially from
51.6% in the first quarter of 2003 to 73.3% for the first quarter of 2004 due
to reduced marketing expenses. The greater the percentage of revenues from
existing customers; with no current marketing costs the greater the profit
margin.
Total expense (exclusive of depreciation) increased from $3,724,705 in the first
quarter 2003 to $4,110,546 in the first quarter 2004. Included in these expenses
is an increase of $1,417,110 in selling, general and administrative expenses
resulting from increased salary, travel and professional fees for our contact
center business. This was in part offset by a substantial decline in expense for
allowance for doubtful accounts. The allowance deceased by over 90%. The amount
of the allowance is based upon the amount of the holdback and reserves of our
billing houses which is a function of the amount of billing of our ISP business.
As a result of the foregoing we had a loss from operations of $639,745 in the
first quarter of 2004 compared to income from operations of 2,622,443 in the
first quarter of 2003.
We did not have any tax expenses in 2004 because of the operating loss carry.
The liability for the first quarter 2003 was $ 480,000.
As a result of all of the foregoing, we had a net loss of $859,555 for the first
quarter 2004 compared to net income for the first quarter 2003 of $1,976,550.
30
COMPARISON OF FISCAL YEAR 2003 TO FISCAL YEAR 2002
General
Set forth below are comparisons of financial results for the prior two fiscal
years. These comparisons are intended to aid in the discussion that follows.
This discussion and analysis should be read in conjunction with the financial
statements and related notes contained elsewhere in this report.
[Enlarge/Download Table]
2003 2002 (Restated) Changes % of Changes
Item
Revenue............................... 36,404,803 26,250,851 10,153,952 38.7
Cost of Sales........................ 16,725,774 17,781,967 (1,056,193) (5.9)
Gross Profit.......................... 19,679,029 8,468,884 11,210,145 132.4
Expense (exclusive of Depreciation)... 14,869,142 10,223,529 4,645,613 45.4
Depreciation.......................... 214,299 98,557 115,742 117.2
Interest Expense...................... 542,280 497,702 44,578 9.0
Loss on extinguishment of
Debt obligation....................... 9,550,700 (9,550,700) (100.00)
Net Income (Loss)..................... 4,379,160 (11,944,922) 16,334,082
Cash, Accounts Receivable &
Prepaid Expense, etc.................. 7,867,041 4,739,186 3,127,855 66.0
Property & Equipment
(Net of Depreciation)................ 1,263,844 406,971 856,873 210.6
31
Our revenues increased from $26,250,851 in 2002 to $36,404,803 in 2003. There
is generally a correlation between the marketing of our ISP services and future
revenues (after the trial period) for customers obtained during the marketing
effort. While our telemarketing efforts for the latter part of 2003 were reduced
(particularly after the FTC proceeding) we nevertheless increased our revenue.
This was because we had significant marketing campaigns in the latter part of
2002 and early 2003. In addition our customer base had grown substantially
during the year so that high level of revenues were retained for a portion of
the year even when our market efforts were diminished. Our revenue grew even
though we could we could not bill our ISP customers for a portion of the year.
Our cost of sales include: (1) the direct costs of acquiring a new customer as
telemarketing and fulfillment costs and (2) the costs of maintaining our
customer base including customer care costs and telecommunication costs for our
internet provider services. The telemarketing and fulfillment costs are initial
upfront charges incurred when a customer signs up and represent the most
significant component of cost of sales. Conversely, the costs of maintaining our
customer base represent a much smaller component of cost of sales. Our costs of
sales in 2003 were approximately $340,000 lower than costs for 2002 despite an
increase in revenues. During 2003 we had significant decrease in telemarketing
expenses. This decrease resulted from reduced costs from using lower cost
offshore facilities, a decline in telemarketing efforts due to our emphasis on
our new business directions as well as the effects of the FTC proceedings. The
cost of sales of 2002 also reflects high telemarketing costs resulting from
increased ISP market efforts in the third quarter of 2002.
Our gross profit was $19,679,029 in 2003 compared to $8,468,884 in 2002. The
increase in gross profit resulted from higher sales accompanied by reductions in
costs.
Total expense (exclusive of depreciation) increased from $10,223,529 in 2002 to
$14,869,142 in 2003. Included in these expenses is an increase of $ 3,768,718 in
selling, general and administrative expenses. This increase was the result of
the increased professional fees incurred in connection with our defense of the
FTC Proceeding and increased expenses incurred with our new business consisting
of increased salary, travel and professional fees. Fees paid to a related party
increased by approximately $2,730,000. This was in part a result of increased
payments under the payment agreement with these parties because of increased
revenues of the ISP subsidiaries. The increase includes $1,050,000 for
subcontract services primarily for our new business which was not incurred in
2002.
As a result of the foregoing we had income from operations of $4,595,588 in 2003
compared to a loss of ($1,853,202) in 2002.
In 2002, we had a loss on debt extinguishment of $9,550,700. This arose with an
agreement of a noteholder not to call the note for a fixed period. This deferral
of the right of demand was treated as an extinguishment of debt. The amount of
the loss represents the value of the consideration received from us for this
deferral. We also had a slight increase in interest in 2003 which was more than
offset by a gain of $324,966 on a settlement of debt in connection with the
reorganization of Savon.
32
We did not have any tax expenses in 2003 because of the use of net operating
loss carry forward.
As a result of all of the foregoing, we had net income of $4,379,160 for 2003
compared to a net loss of $11,944,922 in 2002.
COMPARISON OF FISCAL YEAR 2002 TO FISCAL YEAR 2001
[Download Table]
Item 2002 2001
---- ---- ----
(RESTATED)
Revenues 26,250,851 $ 1,189,723
Cost of sales 17,781,967 $ 1,684,615
Selling, General 10,322,086 $ 2,304,865
and
Administrative
Expenses
Net Operating (1,853,202) $ (2,799,757)
Income (Loss)
Net (Loss) (11,944,922) $ (2,984,598)
Our revenues increased from $1,189,723 in 2001 to $26,250,851 in 2002. This
resulted because we had a full year's sales of the Internet Subsidiaries as well
as increased monthly volume in 2002.
Our gross profit was of $8,468,884 in 2002 compared to a loss of ($494,892) in
2001. The increase resulted from higher sales and the ability as a result of
increased revenue to cover fixed costs accompanied by reductions in
telemarketing and other third party costs per customers.
During 2002, our selling, general and administrative expenses increased from
$2,304,865 from $10,322,086 reflecting higher personnel costs to meet increased
volume and development of new products. We have outsourced many customer service
functions and reduced our payroll expense substantially. As a result, these
costs may decrease relatively.
33
Interest expense increased approximately $448,000 in 2002 as a result of
increased borrowings. As a result of all of the foregoing, we had a loss from
continuing operation of $10,048,402 in 2002 compared to a such loss of $452,031
in 2001. Amortization expenses in 2001 were was approximately $360,000
reflecting nine months of amortization of the the National Online acquisition
which occurred in 2001. Because we discontinued SavOn's then operations in 2001
we had a gain of approximately $267,000 in 2001 from discontinued operations
compared to $43,318 of these costs in 2002.
LIQUIDITY
We had working capital of approximately $2,954,188 as of December 31, 2003
compared to a working capital deficit on December 31, 2002 of approximately
$3,600,000. We had negative cash flow from operations in 2003 but had positive
cash flow as a result of financings.
Historical Cause of Prior Liquidity Issues of ISP Business
Our liquidity problems in 2001 and early 2002 have arisen because there was a
gap between collection of revenue and the payment of expenses. This resulted
primarily because of the method of collection through local telephone companies
that receive billing information from third party billing companies. There was a
lag of as much as ninety (90) days between the time services to our customers
are initiated and when we received the related revenue. One additional reason
for this long initial collection cycle was the one month free service provided
to the customer. While a lag existed in receipt of funds and the date services
commence, there was no corresponding lag in our payables, including
telemarketing fees, communications costs and other costs of obtaining and
maintaining these customers. Telemarketing fees were due shortly after a
customer was signed. In addition, the liquidity issue was partly exacerbated by
uncollectible receivables, which. If we had a higher collection rate, we would
have had more cash available. The size of the initial customer base was not
sufficient to overcome the foregoing and therefore we had a substantial negative
cash flow from this operation.
As a result of the impact of the FTC Proceeding and expenses paid in connection
with our new business,we did not have a positive cash flow from operations as of
December 31, 2003. The growth of our customer base, increased revenue as well as
steps we have taken to enhance cash flow substantially reduced the negative cash
flow from our ISP business. Our telemarketing fees were billed monthly and were
due 30 days from date of billing. National Online and other similar subsidiaries
have taken additional steps to increase their cash flow including receipt of
most receivables within sixty (60) days and receipt of advances prior to payment
of receivables from billing companies and factors of a portion of the amount of
the receivable.
34
Recent Liquidity Issues
Prior to the FTC Proceeding, we believed we would be able to continue to meet
our obligations arising from our existing business through cash flow from
operations. As a result of the proceeding we were deprived of substantial cash
due to the asset freeze and escrow. We also incurred substantial expenses and
interruption of revenue and billing. As consequence we were unable to pay all
our expenses in the normal course. We therefore were compelled to take several
measures including the reduction of personnel, temporary reduction of executive
salaries and postponement of most activity relating to our contact center
business initiative. Notwithstanding modifications of the temporary restraining
order through the stipulated preliminary injunction, resumption of marketing and
billing, and release of substantial amounts of escrow funds, our operational
liquidity problems continued until we received additional financing described
below. Our contact center business direction required increased capital costs
and operating expenses in excess of cash flow. While we had determined to
proceed with our plan irrespective of financing, we would only be able to do so,
on an timely basis with additional financing. We believe the financing described
below will be adequate for this purpose as well as for our operational needs.
COMPARISON OF CASH FLOW OF 2003 WITH 2002
Our cash and cash equivalent in 2003 were $1,342,186 compared to $722,674 for
2002. This increased arose from financing activities which resulted in positive
cash flow of $2,576,279 compared to $272,983 on December 31, 2002. This increase
arose from our preferred stock financing and convertible note financing
resulting in gross proceeds of $2,351,000 and $500,000 respectively. This was
offset by negative cash flow from investing activities and operating activities.
The negative cash flow from investing activities in 2003 arose primarily from
the purchase of $1,058,814 of equipment and property for our new business.
Our operating activities had negative cash flow of $472,464 compared to positive
cash flow of $679,870 for 2002. The decreased resulted primarily from the
effects of the FTC proceeding, which resulted in significant revenue loss, and
expenditures for our new business.
Capital Transactions
As of October 31, 2001 we entered into a Security Agreement and issued a
promissory note to Brookfield Investment Ltd. in the amount of $2,474,000 to
cover the prior advances made by Brookfield. The note was to be increased to
reflect any future advances which ultimately were never made. The note is
payable by us on demand and the principal amount (exclusive of interest accrued
prior to the date of the note) accrues interest at a rate of 7% per year. The
Security Agreement granted Brookfield a security interest in our accounts
receivable as well as those of all our subsidiaries.
35
The parties agreed in principle on November 2, 2002, to modify the Brookfield
Agreement and related note obligations to defer demand for payment (except on
non payment defaults) until January 2005. Brookfield also agreed to subordinate
its security interest to financing lenders. We agreed to pay accrued interest on
the note by July 2003 and issued Brookfield a warrant to purchase 4,000,000
shares of our common stock at an exercise price of $.50 per share. In 2003
Brookfield also surrendered its entire security interest so that the note is
presently unsecured.
In 2003, two of our ISP shareholders entered into a factoring and security
agreement with Thermo Credit, LLC. We were able to sell receivables for half
face with the balance paid upon collection We paid fees to the factor depending
upon the length of collection of the receivable sold. Upon completion of our
note financing we terminated our factoring arrangements and paid the factor
approximately $708,600.
One of our billing agents also advances a portion of the amount billed on a
factoring basis.
In a June 2003 private placement, we sold 23,510 shares of our convertible
preferred stock for an aggregate gross consideration of $2,351,000. For each
share sold, the purchasers received five year warrants to purchase fourteen
shares of our common stock of a total of an exercise price of $7.00 per share
(which has since been reduced to $5.11 pursuant to the terms of the Warrant).
The preferred shares are convertible at an initial conversion price of $3.50
which has been reduced to $2.00 for at least one year pursuant to performance
standards. The price is subject to further anitdilution provisions.
In July 2003, we extinguished over $400,000 of indebtedness consisting of
principal and interest of two notes due unaffiliated telemarketing contractors
in exchange for 127,117 shares of our common stock.
In December 2003, we received $500,000 from a small group of primarily
institutional lenders. We issued to the lenders seven percent one year secured
notes convertible into shares of our Common Stock at $4.00 per share. We also
issued to the lenders five year warrants to purchase 62,500 shares of our common
stock at an exercise price of $5.00 per share. Both the notes and warrants are
subject to antidilution provisions, including price dilution. The lenders have
received a security interest but subject to certain conditions it is second to
existing and future security interests. We have the right to compel conversion
or exercise a portion of the notes and warrants depending upon market condition
and other factors.
2004 Financing
We have received $7.5 million in new financing through a placement agent, Maxim
Group, LLC. Laurus Master Fund, Ltd. ("Laurus Funds") provided $5 million of
financing to Epixtar pursuant to a secured convertible term note, of which
$1,930,000 is to be held in a restricted cash account under the sole control of
Laurus and may be released upon the fulfillment of certain conditions more fully
described in the agreements with Laurus.
36
The term note is convertible at a fixed conversion price of $2.96. In connection
with the issuance of the convertible term note, we also issued to Laurus Funds
seven year warrants to purchase up to 493,827 shares of Epixtar's common stock
at prices ranging from $4.05 to $4.66. Of these warrants to purchase 197,531
shares, are non-exercisable until the cash in the restrictive account is
released.
The remaining $2.5 million was raised through the private sale of convertible
notes and common stock purchase warrants to accredited investors. Notes in the
principal amount of $1,000,000 or "Bridge Notes" are convertible at a price of
$2.37 per share and are secured. The holders of the remaining $1.5 million of
convertible notes have the right to convert their notes into shares of the
Company's common stock at a price of $2.96 per share or receive the repayment of
their principal amount, plus interest. We have repaid $925,000 pursuant amount
of the wedge noteholders the balance have converted into ___ shares of common
stock.
In addition, the holders of the notes received five year warrants to purchase an
aggregate of 136,073 shares of the Company's common stock at initial exercise
prices of between $5.05 and $4.66. The Bridge Notes and related warrants are
required to be converted or exercised in certain circumstances.
We also issued placement agent warrants in connection with each of the above
transactions. We will thereby issue warrants to purchase an aggregate of 254,316
shares of common stock of which warrants to purchase approximately 67,564 shares
will be deferred until the restrictive cash account referred to above is
released. The terms of the placement agent warrants are varied, as a portion of
these warrants were issued in connection with each transaction and the price and
the number of shares have been determined in connection with each such
transaction.
The exercise and conversion prices of all the above securities are subject to
price and other adjustment.
Each of the Notes contain restrictions on certain actions we may take, including
restrictions on dividends, stock repurchases, incurring indebtedness, creating
security interests in our assets and changing of our business.
All the above described securities are restricted and we have undertaken to file
a registration statement covering the resale of shares of Common Stock issuable
upon conversion of these notes and exercise of these warrants.
QUANTITIES AND QUANTITIVE -- DISCLOSURE ABOUT MARKET RISKS
Foreign Currency Risk
We are exposed to market risk associated primarily with changes in foreign
currency exchange rates. We have operations in the Philippines; however, both
revenue and expenses of those operations are typically denominated in the
currency of the country of operations, providing a natural hedge.
37
Our financial statements are presented in U.S. dollars and can be impacted by
foreign exchange fluctuations through both (i) translation risk, which is the
risk that the financial statements for a particular period or as of a certain
date depend on the prevailing exchange rates of the various currencies against
the U.S. dollar, and (ii)transaction risk, which is the risk that the functional
currency of cost and liabilities fluctuates in relation to the currency of our
revenue and assets, which fluctuation may adversely affect operating margins.
With respect to translation risk, even though the fluctuations of currencies
against the U.S. dollar can be substantial and therefore significantly impact
comparisons with prior periods, the translation impact is recorded as a
component of stockholders equity and does not affect the underlying results of
operations.
Seasonality
Generally, our operations are not subject to seasonal factors. However, in
December 2002, we reduced our ISP telemarketing activities because we believed
potential customers would be preoccupied with holiday activities. For the same
reason we did not resume our marketing efforts in late 2003 after we entered
into the stipulated preliminary injunction in the FTC proceeding.
BUSINESS
INTRODUCTION
We are primarily engaged in growing our contact center business in the
Philippines. Our contact centers perform business process outsourcing or BPO
services, for third parties. From July 2001 to the present substantially all our
revenues have been derived from subsidiaries providing internet service to small
businesses through third party dial up facilities. These services were marketed
through independent contact centers that we supervised, many of which were
overseas. Based upon the trend to foreign outsourcing and our expertise we have
determined to focus our business efforts to provide call center services for
third parties through our contact centers. An integral part of our plan is to
utilize our own international contact centers either through development,
acquisition or joint venture. We intend to take advantage of what we believe is
a growing trend for United States companies to outsource marketing and other
services overseas. Today, our contact center business represents only a small
percentage of our revenue, but this business represents the focus of our
management and capital. We believe that the primary source of our revenue will
begin to change to our contact center business in the first quarter of 2005.
38
Our business is conducted through wholly owned subsidiaries. Recently we have
determined to have our BPO agreements with clients entered into with our newly
formed Bermuda subsidiary, Epixtar International Contact Center Group, Ltd. The
performance of these agreements will be subcontracted to Epixtar Philippines IT
Enabled Services Corporation, or other to be formed Philippines subsidiaries,
the owner of our contact centers. National Online Services, Inc., Liberty Online
Services, Inc.; Ameripages, Inc. and B2B Advantage, Inc. are our subsidiaries
engaged in our ISP business (as described more fully below) and specifically not
involved in our contact center business.
We were organized as a Florida corporation in June 1994 under the name Pasta
Bella, Inc. In 1997, we changed our name to Global Asset Holdings, Inc. We
adopted our current name, Epixtar Corp., in 2002. We had no business until
November 14, 2000, when we acquired an 80% membership interest in
SavOnCalling.com, LLC. Savon was engaged in the marketing and resale of domestic
and international telecommunications services. It is no longer in business and
in 2003 completed a reorganization under the federal bankruptcy law. We acquired
NOL in March 2001 from an affiliated party.
CONTACT CENTER BUSINESS
We have now determined to place our resources and energies in developing our
contact center business rather than expanding our ISP business.
Overview
BPO involves contracting with an external organization to take responsibility
for providing a business process or function. Companies initially used BPO to
achieve cost savings in transaction-intensive, back office business processes.
Today, in addition to cost savings, BPO adoption is driven by opportunities to
improve a wide range of business processes and a desire to outsource non-core
activities so that management can focus on its core products and services. Call
center services, also known as tele-services, are enabled on a global basis by
the availability of quality communications bandwidth at reasonable costs to such
English speaking countries as the Philippines.
The BPO market includes several functionally-oriented submarkets, such as human
resources, procurement, sales and marketing, finance and accounting, customer
management, facilities management and training. Demand for BPO services has
experienced strong growth in recent years. According to International Data
Corporation, worldwide demand for functional BPO services is expected to exceed
$447 billion in 2004, and worldwide spending for outsourced customer management
services, our primary industry segment, is expected to exceed $44 billion in
2004.
39
Current trends in BPO
The scope of outsourced customer interaction has expanded to a scope from
outbound telemarketing calls to a broad spectrum of customer management
services, including customer care, technical support and in bound sales and
internet based contact via e-mail and chat. The delivery platform has evolved
from single facility, low technology call centers to large, high volume customer
care centers that use advanced technology. Companies are now focused on
optimizing their brands through improved customer care and increasing the value
of their customer relationships by "up-selling" and "cross-selling" additional
products and services. At the same time, global competition, pricing pressures
and rapid changes in technology make it increasingly difficult for companies to
cost-effectively maintain the in-house personnel and infrastructure necessary to
handle all of their customer management needs. These trends, combined with
rapidly expanding consumer use of alternative communications, such as the
Internet and e-mail, has resulted in increased demand for outsourced customer
management services.
We believe the factors that influence companies to outsource services include:
o significant cost benefits; -
o the ability to free available resources and management to focus on
developing core products and services; -
o increasing capital requirements; and -
o extensive and ongoing staff training and associated costs
o targeted improved quality. -
We expect corporations continue to shift business processes from internal
operations to outsourced partners. International Data Corporation estimates that
the worldwide market for outsourced customer management services will grow from
$44 billion in the year 2004 to $64 billion by the year 2007.
Trend toward offshore delivery of BPO services
To attain high quality BPO services at a lower cost, many companies are moving
selected front and back office processes to providers with offshore delivery
capabilities. In recent years, fiber optic AND voip (Voice over internet
protocol)telecommunications facilities have become widely available at
affordable rates. At the same time, offshore providers have become more accepted
and continue to grow in recognition and sophistication. As a result, a large
number of BPO services companies have established offshore operations or operate
exclusively offshore.
43
Philippine-based delivery model
We have determined to establish our contact centers primarily in the
Philippines. The Philippines is an attractive and growing market for offshore
BPO services and, as an early entrant, we have successfully established
ourselves as one of the market leaders. With the third largest English speaking
population in the world, the Philippines has a large pool of skilled, college
educated professionals who speak fluent English with minimal accents. Many
Filipinos are familiar with Western business practices and have an affinity for
U.S. culture, which we believe offers a particular advantage in interacting with
U.S. consumers and processing U.S. business transactions. In addition, the
Philippines has a well-developed telecommunications and utility infrastructure
and an attractive business environment for BPO companiesWe have fiber optic
based lines provided through leading communications companies to all of our
locations in the Philippines. The Philippine government has encouraged foreign
investment and provided significant assistance to our industry through the
abatement of corporate income taxes, changes to the country's educational
curriculum and relaxation of certain regulatory restrictions. The personnel and
infrastructure available in the Philippines enables us to provide BPO at a
substantially lower cost than U.S. outsourcing providers and, we believe, at
generally comparable or superior quality levels. We believe our educated,
English-speaking workforce enables us to provide consistently high quality BPO
services at costs generally comparable to other offshore locations and
substantially lower than the United States.
40
Implementation of our Contact Center Business
We have taken the following steps to implement our contact center business:
o hired additional executives and other personnel for the new operations
o established subsidiary corporations for this operation
o entered into preliminary arrangements to acquire call center assets in
India ( since terminated)and have been operating a call center in the
Philippines for which we have entered into a definitive agreement to
acquire.
o entered into leases for a twelve story building in the Manila area of
the Philippines to be developed as a contact center.
o acquired capital equipment and negotiated or entered into capital lease
agreements negotiated and entered into agreements for outsourcing
services.
Through December 31, 2003 we have expended approximately $1,800,000 on the new
operation and estimate an additional expenditure of approximately $ 800,000 in
the first quarter of 2004. Firm UP
We have decided to delay our entry into the Indian market and emphasize the
advantages of the Philippines as an outsourcing destination. For the immediate
future we will concentrate our efforts in the Philippines and not have any
operation in India. As a result we did not pursue the preliminary arrangements
we had entered into to acquire assets in India.
We currently have approximately 600 contact center seats at two facilities in
Manila in the Philippines. One of the facilities is in Alabang (a Manila
suburb), which we have been operating since September 2003 and completed our
acquisition of the center's assets in the 1st quarter 2004. This center is
targeted for expansion to up to 600 seats. Our second facility is in Eastwood
City Manila which we recently opened with 350 seats. The Eastwood City flagship
facility will be developed to 1600 seats and will serve as our regional
headquarters for the Philippines.
41
As we move forward with our seat development plan we will continue to hire
additional supervisory and staff personnel to support our facilities as
required. Additional capital equipment, by purchase or lease, in the Philippines
and Miami will also be required for this expansion.
In connection with our proposed expansion:
o We have signed a letter of intent to lease approximately 2,600 square
meters (about 28,000 sq. ft.) of new office space. The future three
story call center site is anticipated to be ready for occupancy by 2nd
quarter 2005. It is located in the city of Dumaguete, on Negros, in the
Visayan Island region of the Philippines. The new facility, once
completed, will add an additional 400 contact center seats to the
Company's Philippine operations.
o We have signed a letter of intent to lease approximately 5,500 square
meters (about 59,201 sq. ft.) of new office space. The space represents
top level of a two story building that should be ready for occupancy by
September 2004. It is located in the Aseana area of Manila. The
facility will add an additional 1600 contact center seats to the
Company's Philippine operations.
o We have entered into a letter of intent with Innovative Marketing
Strategies, Inc. (IMS). The highlight of the proposed transaction is
the acquisition of IMS Asia, a wholly owned subsidiary of IMS. IMS Asia
operates a 150 seat facility that is targeted for expansion to 400
seats. The center is located in Makati, the central business district
of Manila. IMS and IMS Asia have a complement of Fortune 500 clients in
the financial services sector.
All letters of intent are subject to conditions and may not necessarily result
in a completed transaction.
We are constantly exploring new opportunities to develop or acquire seats.
We anticipate that each contact center will have the capability to operate 24
hours per day, 7 days per week. We are initially targeting full occupancy to the
goal of two shifts depending on availability of contracts. In addition, each
contact center will employ technical, administration and supervisory staff. Our
contact centers are expected to have the capability for a variety of outsourcing
purposes but will be primarily providing in bound and out bound calling services
for our clients. Our contact centers could also be available to handle various
other outsourcing services for clients, including data management, business
processing and fulfillment services.
The above description represents our present plans and is subject to change
based upon the availability of financing and other factors. The absence of
funds, construction and/or equipment delivery delays and other factors could
prevent us from fulfilling all our plans and/or prolong the timetable.
42
Current Service Arranagements.
In 2003 we entered into an agreement with a national telecommunications company
pursuant to which we became an authorized sales representative to market one of
the client's long distance services. We basically are engaged to handle
soliciting orders and contracts, completing order and registration forms,
transmitting completed contracts, orders received by us and assisting the client
to resolve customer complaints.
We have entered into a master service agreement with a major database company.
Pursuant to this agreement we provided tele-verification services for the
client's business data base. We place outbound calls to the database gathering
as many data points as possible. We voluntarily suspended this program until it
could be ramped up to our Eastwood facility.
Epixtar has an exclusive off-shore services agreement for any and all sales or
BPO work for a company that sells chemical supplies to businesses and home
owners. The current scope of work includes outbound telesales to consumers in
the North America, Australia and the United Kingdom. The program is being
expanded to offer inbound customer care to the company.
We have launched a pilot program with a major international bank for a telesales
program to obtain new credit card accounts and obtaining a more comprehensive
data base of the target customer base for new accounts. This includes but is not
limited to an outbound Philippine consumer program that will primarily operate
during Manila daytime hours. The pilot program reach a successful conclusion.
Other Possible Services
Our centers are designed to primarily deliver tele-services, that is services
delivered via telephone or internet. Our contact centers would also be available
to handle various other outsourcing services for clients, which would be
performed during hours of operation when calling to within the continental
United States would not be feasible. These services include, but are not limited
to:
o Transcription
o Data Entry
o Accounting
o Fulfillment Services
o Data Analysis
o Programming
BPO COMPETITION
We believe that the principal competitive factors in our business include the
ability to:
43
o provide high quality professionals with strong customer interaction
skills, including English language fluency with minimal accents; -
o offer cost-effective pricing of services; -
o deliver value-added and reliable solutions to clients; -
o provide industry specific knowledge and expertise; -
o generate revenues for clients; and
o provide a technology platform that offers a seamless customer
experience.
While we only recently commenced our contact center business we believe that we
can compete effectively on all of these factors in the areas in which we are
providing service.
The global BPO services companies with whom we compete include offshore BPO
companies and U.S. based outsourcing companies. There are numerous BPO companies
based in offshore locations such as India, the Philippines, China, Latin
America, the Caribbean, Africa and Eastern Europe. Our contact centers will face
competition from other local established firms such as e-Telecare, Ambergris,
Contact World, and Global Stride Further, certain larger US based call center
companies have entered the Philippine local market. These companies also may
have greater financial, personnel and other resources, longer operating
histories, more recognizable brand names and more established client
relationships. Most of these companies compete with us primarily on price and
are often able to offer lower costs to potential clients. We seek to position
ourselves as a service-focused company, with a workforce attuned to U.S. culture
and a focus on revenue generation for our clients. In addition to our direct
competitors, many companies choose to perform some or all of their customer
care, technical support, collections and back office processes internally
Contact Center Technology
Our NOC or network operations center is housed in a collocation facility in
Miami Florida. The NOC is the central point of our technology for our contact
center business. It is the destination of all inbound calls, the originating
point to the domestic phone network for outbound calls and the point of control
for the CTI, or computer telephony integration. The NOC become the hub for our
technology enabling monitoring of activities, calls, and network quality. The
NOC is where the predictive dialer/ACD (automatic call distribution) technology
resides. When we develop multiple centers the NOC will act as the hub for all
global centers, enabling the operation of each center as part of a global
virtual center. Such a virtual center allows for more efficient capacity
management by directing spikes in utilization to any center connected on the
network that has excess capacity. Calls are transmitted to and from the centers
and agents via VOIP (voice over internet protocol) on leased broadband
telecommunications lines to each center.
The agent at each contact center location will be utilizing a personal computer
and either an IP enabled phone, an analog or traditional phone or communicate
directly through the PC enabled as an IP phone, depending upon the specific
technology implemented in each case.
44
INTERNET SERVICE PROVIDER BUSINESS
Our internet provider services or ISP services are sold by several subsidiaries,
all of which provide similar services including access to the internet through
dial up net works of third parties. Each subsidiary includes a different item of
additional value. For example, one of our subsidiaries, B2B Advantage Online is
an internet service provider that combines that ISP service with portal access
to a third party service which provides extensive accounting and legal
resources, including legal forms. Other subsidiaries provide online yellow page
listings and customizable websites.
Our internet service provider subsidiaries market their services exclusively to
small business subscribers, much like America Online(R) markets membership
primarily to residential customers. It is estimated that a substantial number of
small businesses in the United States still do not have an online presence. We
believe our subsidiaries meet the needs of this class of small business by
providing nationwide unlimited Internet access and e-mail service; developing
unique branded and customized Web sites and hosting services; featuring the
business prominently in the online True Yellow Pages directory; registering the
member-business in several major search engines; and, delivering simple online
solutions for several areas of the member's business - all administered as one
service for one monthly fee. The monthly fee covers the internet provider
services, yellow page listing and software and other valued-added services or
products. The fee is billed to the customer's telephone bill and remitted to us
by billing houses. Each of the LECs and billing houses charge us a fee for
billing and collection.
Set forth below are the names of our ISP operating subsidiaries with the dates
of each entity's original incorporation in Florida.
[Enlarge/Download Table]
Corporation Date of Incorporation
----------- ----------------------------------------
National Online Services, Inc. (1)......... February 22, 2001
Liberty Online Services, Inc. (1).......... December 12, 2001
Ameripages, Inc. (1)....................... February 13, 2002
B2B Advantage, Inc. (1).................... October 31, 2002
------------
(1) Each of these corporations is now a Delaware corporation.
ISP Customer Acquisition
When we market our ISP services ,we acquire customers for our ISP services by
direct contact through telemarketing. The value of our product or service is
described through a sales script prepared by us that is presented by the agents
of the call centers. Until recently this telemarketing effort was outsourced to
independent contact centers. Recently we began marketing the product through our
own contact centers.
45
We have utilized a form of marketing called "free to pay" conversion. This
entails offering a free trial period for our services. If the customer does not
cancel by the end of the trial period the services will continue and the
customer will be billed. This method of marketing is sanctioned by the Direct
Marketing Association and the Federal Trade Commission has published rules
governing this type of marketing.
To qualify for the free-trial offer, the customer provides advance consent for
billing should he or she choose to remain a customer after the free-trial period
ends. The authorization for billing is recorded for compliance with federal
rules and quality control purposes. A charge for the service or product is
submitted to the customer's phone company for billing and collected every month
thereafter on the anniversary of the conclusion of the free-trial. Until
recently our ISP subsidiaries primarily used unrelated third party call centers
to market our services. The call center companies we utilized were located in
the Philippines, the Caribbean, India and the United States. Our contract with
these companies provided for the solicitation of customers in the United States
solely with leads provided by us using our approved sales procedures, including
required script and verification requests. The telemarketer is required to
follow quality assurance procedures which are described under "Regulatory and
Compliance Matters". Some of the independent telemarketers used to acquire ISP
customers were entitled to a fee when they obtained a customer even if the
customer canceled after the trial period. However, we have withheld payments
from these companies for customers improperly obtained. We have also suspended
and/or terminated the arrangement for material breaches of our marketing
agreements. During 2003, we retained $453,680 of payments. In the course of
review of verification recording files by an independent company based in
Manila, Philippines, improprieties were discovered at three of our call centers
located in India. As a consequence, we suspended sales activities at these
centers. After investigation we implemented a series of measures to prevent
future problems. At the same time we suspended marketing of our One Nation
Calling Plan because this product was sold through these centers.
We devote significant effort to complying with regulations governing the free to
pay conversion program offered. It is essential that we obtain informed consent
from our customer. We also comply with state and now federal do not call lists,
which prohibit calls to persons on the list. The latter regulation only applies
to residential telephone numbers and not businesses. Since our customers are
businesses we do not believe the do-not-call rules will have a significant
effect on us as long as we make certain we only call businesses.
At the close of each business day, the call center sales data and verification
recordings are uploaded to our server and then reviewed as part of our quality
control, including review for compliance with law.
Upon completion of the quality control process, the sales data files are
processed. We automatically create customer websites in a variety of styles
utilizing the customer provided information. E-mail and dial-up accounts are
established upon acceptance.
46
A welcome kit is sent by mail. The kit is personalized for each customer and
sent with a CD-Rom providing internet access, instructions for e-mail and
website customization, and complete terms and conditions pertaining to the
customer's obligation to cancel should he or she elect not to continue the
service. We utilize contracted third party fulfillment houses to process the
mailings. The 30-day free trial of the service for each customer begins upon
receipt of their welcome kit. The billing department processes each customer's
charges monthly on the anniversary date of the completion of his trial period.
Third-Party Billing Companies for our ISP business
We utilize the services of independent third party billing houses to process
billing and collections for our ISP subsidiaries. The independent clearinghouses
perform several significant functions for our ISP subsidiaries on our behalf. We
submit our ISP billing to one or more billing companies on a weekly basis. These
bills are screened to eliminate customers who are not served with a LEC that
accepts billing or otherwise does not qualify. The bills are then submitted to
the respective LEC, which in turn bills the customer. Collected funds are
typically remitted to us within 60 to 90 days. The billing agent may also have
contact with the customer when questions arise concerning the bill. Some billing
companies offer advance funding arrangements with the availability and extent of
funding differing greatly. These arrangements are generally in the nature of a
factoring arrangement. The billing house purchases the receivable due us giving
us a percentage of the amount. The balance less fees and charges are paid upon
collection. One of these billing companies has terminated their relationship
with us in early 2003. Our subsidiaries currently use three billing houses, ACI
Billing Services, Inc., eBillit, Inc. a.k.a Payment One and Enhanced Services
Billing, Inc. a.k.a. Billing Concepts.
ISP Customer Care
Our customer care has been outsourced to a call center in Manila. We are in the
process of transitioning this operation to our Miami office. Customers might
call customer care for a variety of reasons including technical questions about
the Internet access, e-mail configuration or website editing; service questions
such as what is their billing date or end of trial date; questions regarding
phone card usage; premium redemption requests; cancellations; or other issues
regarding the service or billing. We have full time trained customer care
specialists who are subject to continuing formal and informal training.
Each customer care specialist has real time computer access to relevant customer
data including direct access to a customer's website and account configuration
to provide technical assistance, a chronological history of events including
sale, fulfillment, billing and inquiries. Calls arrive at the center either
directly from calling customers or are transferred from the relevant billing
companies whose 800 numbers generally appear on the customers' phone bill.
47
ISP Regulatory and Compliance Matters
We devote significant effort to complying with regulations governing the free to
pay conversion program we offer. In order to maintain our ability to serve
customers and collect revenue, we have taken a proactive approach to resolving
regulatory complaints or inquiries. In each of our lines of business. Our ISP
Customer Care department has initial responsibility for inquiries and, if
necessary, followed by consideration by our compliance department for those of
our ISP subsidiaries. Most often, a resolution is achieved.
Most of the regulatory and compliance issues revolve around allegations of
unauthorized LEC billing arising from violations of the free to pay conversion
rules. State Public Service Commissions, State Attorney General Offices, and the
FTC attempt to prevent "cramming" or the addition of a specific charge or
charges to a customer's local telephone bill without the proper authorization.
We do not approve, or participate in, cramming. Our internal procedures reflect
an absolute prohibition and zero tolerance for cramming. Through our billing
agreements we have agreed to adhere to the highest disclosure standards. Our
compliance policy includes the requirement that the telemarketer, among other
things, uses an approved sales script and follows a prescribed verification
procedure. We record each customer authorization and store the digital file for
retrieval if needed to show compliance with the law.
We believe we have taken extraordinary steps to ensure that we do not violate
regulations relating to cramming. First we seek to avoid all sales in situations
that a prospective customer may not realize a charge will be placed on the
customer's phone bill after the trial period. Whether we are selling direct or
through independent telemarketers, we do so by:
o Making certain that the required script provided by us is adhered to by
spot checks by personnel at the site and by our ability to monitor calls
directly from our headquarters.
o Making certain that the verification process has been adhered to by
reviewing all verification recording by our personnel and by independent
third parties.
o Rejecting any orders where we are not satisfied that our procedures have
been adhered to.
o Reminding the customers by mail prior to the end of the trial period that
the customer has the right to cancel.
Sales not properly authorized are rejected. For sales that are properly
authorized we then take steps to make certain that the customer during the free
trial period is aware that they will be billed at the end of the free period. We
do this by including a warning in our welcome package. This is followed by an
e-mail and a pre-billing notice to the customer with the same information sent
ten days prior to the billing date.
In 2003, inquiries were made based upon alleged violations of state restrictions
on calling residences, popularly known as "do not call" lists. Our target market
for the ISP business has been solely businesses. These "do not call"
restrictions do not apply to business telephone numbers. These complaints mainly
have originated from individuals conducting their businesses at home who had
improperly placed their numbers on these lists. We have procedures in place to
suppress non-business phone numbers.
48
Despite our substantial compliance efforts we have received numerous complaints
from governmental agencies and the Better Business Bureau. While complaints may
be received informally, we are subject to formal regulatory inquires as well as
formal proceedings in several states. In two states, we have negotiated
settlements, which resulted in total payments for costs of less than $10,000 and
a requested script change. While we believe our script is fully compliant with
all regulations and not misleading we have agreed to the change as part of an
ongoing policy of complying with all regulators, including those of state
consumer protection agencies. See Item 3 Legal Proceedings for information
concerning current material legal procedings ,including the FTC proceeding, and
investigations against us. In addition to these proceedings customer complaints
have resulted in the termination of arrangements with a billing house and a LEC.
We do not believe these terminations have had a substantial impact on current
revenues but future complaints may lead to further terminations. We therefore
have increased our compliance efforts as discussed above.
ISP COMPETITION
Our internet provider service subsidiaries face competition from other larger
and more established providers such as AOL(R) and Earthlink(TM). In each case,
many of the competitors are well established, have reputations for success in
the development and sale of services and products and have significantly greater
financial, marketing, distribution, personnel, and other resources than us.
These resources permit these companies to implement extensive advertising and
promotional campaigns, both generally and in response to efforts by additional
competitors to enter into new markets and introduce new services and products.
Competition relating to our new business will consist of pricing and quality of
service.
ISP INTERNET TECHNOLOGY
Our ISP subsidiaries utilize the underlying dial-up network services of Qwest
and UUNet as resold to us through other suppliers. Customers receive
customizable web sites, dial-up Internet access and up to six e-mail accounts.
Our core customer network infrastructure is maintained in colocation facilities
equipped with redundant systems (located in Virginia and Florida). The web,
e-mail, database and authentication servers are comprised of Microsoft based
systems. All management of the systems of our present business takes place from
offices in Florida.
49
OTHER ACTIVITY
During 2002, we introduced Financial Freedom and One Nation Calling Plan.
Financial Freedom, a product introduced in 2002, was the result of a partnership
between us and the Financial Freedom Foundation, to create a credit awareness
and improvement product billed through bank account debits. We terminated the
program during the fourth quarter of 2002 because of changes made to software
relating to bank account debits.
During 2002, we also introduced a long distance product, the One Nation Calling
Plan, in what we believed was a competitive product targeted at small businesses
for long distance, travel card, and toll-free access. Because of problems with
call centers marketing this product and the need to reallocate expenses, we have
suspended marketing of this product since February 2003, although we still
service a small number of customers. At this time, we have not yet decided
whether to resume marketing this product or market a substitute product.
Our subsidiary One World Public Communications Corp. provides international
direct dial service for coin telephones. Revenues from this service have been
minimal. We believe this business has potential but we have devoted our
resources to our other operations. In October 2003, we commenced the marketing
of prepaid phone cards which has not resulted in significant revenue.
EMPLOYEES
As of May 31, 2004, we had 286 employees. Of that number, 9 employees are
engaged in engineering and computer systems; 10 employees are engaged in
marketing and sales; 31 employees are engaged in administration and finance,
including officers of the Company 8 are in customer services, and 228 overseas
employees. The number of our employees will be substantially increased as we
open additional contact centers seats.
PROPERTY
Our office facilities consist of approximately 9,770 square feet of office space
in total located in separate suites at 11900 Biscayne Blvd., Miami, Florida,
33181.In 2003 we executed an agreement to enter into a new lease at our present
location replacing existing arrangements, eliminating some existing space and
obtaining larger substitute space. Pursuant to this arrangement we are to lease
a total of approximately 16,800 square feet. The lease is for five years at
annual rentals ranging from approximately $328,000 to approximately $380,000 in
the final year. Because construction of the substitute space was not completed,
the rent until completion has been adjusted to reflect our continued occupancy
of a lesser amount of space.
50
We have executed a seven year lease with a build-out provision for a facility
consisting of eleven floors to house our Manila Call Center, which is under
development. The facility consists of approximately 94,100 square feet for
operations and another 41,980 square feet for parking space. The rent on this
lease is paid quarterly and commences in July, 2004. With value-added tax and
other taxes, the rent (for parking and office space) is approximately $53,580 in
the first year increasing to $76,840 in the final year. Pursuant to such a lease
with a separate landlord we are leasing an additional floor at this building.
The foregoing amounts are based upon current currency exchange rates.
In connection with the contemplated acquisition of call center assets in
Alabang, Philippines, we anticipate receiving an assignment of a lease for the
facility where the acquired assets are located. The lease to be assigned to us
expires in 2006. The premises consist of two floors for a total of approximately
14,000 square feet. Base rent is presently $ 8,250 monthly which increases in
increments to $ 9,100 in 12 months. We are also obligated to pay value added
taxes and increases in real property taxes and other charges. The foregoing
amounts are based on a currency exchange rate of 56 Philippine Pesos to 1 US
Dollar.
We also lease residences in the Manila area for personnel.
Our technology for both the ISP operations and our new call centers is based in
a network operations center located in a Miami collocation facility where the
equipment of numerous other voice and data carriers are also located. We occupy
a 200 square foot "cage" at 100 North Biscayne Boulevard, Miami Florida pursuant
to a Building Access License Agreement expiring in 2006 at an annual rent of
$48,000.
We may enter into additional leases as we find new locations to acquire or
develop contact centers.
LEGAL PROCEEDINGS
All our current proceedings arise out of our ISP business.
Government Actions Relating To ISP Business
On October 30, 2003 we and our subsidiaries, and an officer, William Rhodes,
were sued and served with an ex parte temporary restraining order, asset freeze,
order permitting expedited discovery, order appointing temporary receiver, and
an order to show cause in an action commenced by the Federal Trade Commission in
the United States District Court for the Southern District of New York. The
order covers each of these entities, as well as their parents, subsidiaries, and
affiliates. The proceeding arises out of alleged failures of our subsidiaries to
comply with regulations relating to the conversion of a trial customer to a
paying customer. We vigorously deny any wrongdoing and believe that our business
practices are in compliance with all applicable laws. As of November 19th, 2003
without any finding of wrongdoing, we agreed in principle to enter into a
preliminary injunction with the Federal Trade Commission. As a result we were
able to resume our ISP business subject to the oversight of a monitor. The asset
freeze was lifted except that a portion of our assets was held in escrow against
customer refunds. An additional amount held by certain subsidiaries was subject
to further resolution, which may result in all, or a portion of such funds being
returned to us. We and the FTC are negotiating further resolution of the
above-described dispute. As a result of the above action, we experienced
substantial business disruption, incurred significant expense and reduction of
our working capital. It is impossible at this time to determine the full impact
of the proceeding. We are presently negotiating the terms of a final permanent
injunction We cannot predict the terms of the final order or when ithe terms
will be finalized.
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On January 17, 2003, the Attorney General of Missouri filed an application for a
temporary restraining order and preliminary injunction against certain of our
subsidiaries alleging "cramming." We entered into a negotiated consent to the
entry of the temporary restraining order and preliminary injunction because the
consent action did not hinder the way our subsidiaries conduct their business
and we do not condone cramming in any event. We have filed an answer to the
request for a permanent injunction that vigorously denies any wrongdoing and
that the allegations against us are without any basis in fact and without merit.
On May 22, 2003, the Attorney General of North Carolina filed a complaint
alleging "cramming" against certain of our subsidiaries, as well as a motion for
temporary restraining order and preliminary injunction. As in the case with the
Missouri action and for the same reasons, we entered into a negotiated consent
to the entry of a temporary restraining order and preliminary injunction.
Private Action
On January 30, 2004 Dixon Aviation, Inc. commanded an action in the Circuit
Court of Alabama for Barbour County against us, an officer, NOL, Liberty, a
billing house and a LEC. This litigation was brought as a class action complaint
for declaratory and injunctive relief, alleging that the Defendants engaged in
cramming. We deny all liability and believe we have valid defenses to these
claims (including recorded verifications). A motion has been made to remove the
action to federal court and in addition we will move to dismiss the class action
aspects of the claim. Pursuant to our arrangement with the LEC and billing house
defendent we are obligated to indemnify the LEC and billing company defendants.
Government Investigations
From time to time, we also have received investigative process from various
other states. The Attorney Generals of Florida, Texas, Minnesota and Kansas have
issued process requesting certain information and documentary material
concerning the operations of our ISP subsidiaries. The subsidiaries involved are
responding in the appropriate manner and providing the information and
documentation as required.
In July, 2003, we received a subpoena from the Attorney General of Pennsylvania.
This subpoena requested information and documentation relating to certain
alleged business practices of our subsidiaries relating to "do not call
regulations." We believed our response demonstrated compliance with the rule and
that the matter is considered closed.
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Arbitration Proceedings
ETelecare International commenced an arbitration proceeding pursuant to an
agreement amended from time to time to provide call center services to us.
ETelecare has claimed that we have failed to pay for the service rendered. We
have denied liability and will counterclaim for the return of $3,293,038.36 paid
to eTelecare alleging eTelecare engaged in systemic fraudulent activity that
caused us damage.
LAWSTAR, INC. commenced an arbitration proceeding to recover 1,000,000 in
connection with an agreement to provide a legal service access plan, marketed in
a private label environment to B2B Advantage, Inc.'s small business customer.
Lawstar has claimed that B2B has breached the contract and failed to pay for the
services rendered. B2B denies liability because the contract was terminated and
claimant was fully paid pursuant to the terms of the contract
Bankruptcy of Subsidiary
In August 2002, our subsidiary, Savon, filed a petition under Chapter 11 under
the United States Bankruptcy code in United States Bankruptcy Court for the
Southern District of Florida. Savon was a defendant in a lawsuit brought by
Global Crossing Bandwidth, Inc., a wholesale telecommunications carrier that had
an agreement to provide service to Savon. Global Crossing alleged $21,000,000
damages for breach of contract in its complaint, filed in the United States
District Court for the Eastern District of Michigan.
SavOn had asserted counterclaims against Global Crossing for breach of the
agreement and tortuous interference with customers. In conjunction with Global
Crossing's pending Chapter 11 proceeding, our counterclaim was stayed. We
therefore could not obtain a judgment against Global Crossing and at the same
time we would incur substantial defense costs. SavOn therefore filed for
protection under the bankruptcy code. In connection with the proceeding, we
advanced $65,000 to SavOn to settle a claim in connection with alleged
distribution of Savon's assets for our benefit. The Plan of Reorganization has
been confirmed by the Bankruptcy Court.
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0FFICERS AND DIRECTORS
Set forth below is information concerning our directors and
executive officers:
Name Age Position
------------- --- --------
Martin Miller 64 Chairman of the Board, Director
David Srour 43 President, Chief Executive Officer, Director
Norman DePalantino 52 Chief Operating Officer
Irving Greenman 68 Chief Financial Officer, Director
Gerald Dunne 42 Executive Vice President
Deborah Gambone 52 Vice President, Corporate Counsel and Secretary
Ricardo Sablon 44 Vice President - Chief Technology Officer
Harry Fozzard 37 Vice President-Marketing
Sneharthi Roy 39 Vice President-Call Center Operations
William D. Rhodes 56 President National Online, director and officer
and director of other subsidiaries
David Berman 58 Director
John W. Cooney 68 Director
Kenneth Elan 50 Director
------------
Martin Miller has been our Chairman of the Board and Chief Executive Officer
since October 2002. Mr. Miller has also been a private investor for the last
twenty-five years and served on various boards of directors of both public and
private companies. During this period he also acted as a United States manager
of corporate finance for a foreign investment group. He was also our chief
executive officer from 1997 to 2000 when we had no operations.
David Srour has served as our President since June, 2003. He previously served
as our Vice President and Chief Operating Officer from November 2001 through to
June 2003. Prior to joining us, Mr. Srour was Senior Director of Information
Service of Carr America Realty, a former client of his at KPMG Consulting in
McLean, Virginia, where he was a Senior Manager from 2000 to 2001. At KPMG, Mr.
Srour specialized in eCommerce, project management and process improvement
consulting services. Beginning in 1997, he spent four years at Ernst and Young
LLP, providing information systems and process improvement consulting services
including back office and eCommerce implementations for such clients as General
Motors, Lehman Brothers and Simon Property Group. Mr. Srour also has significant
telecommunications experience, including roles as COO of Interactive Telecard
Services, Inc. and SmarTel Communications.
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Norman DePalantino was appointed our chief operating officer on April 16 2004.
Previously from March 2001 he was President of ePerformance a call center and
management consulting company that serviced all facets of the direct response
market. From January 2000 to March 2001 he served as vice president of
operations at Priceline.com where he managed the productivity of three
outsourced call centers. Prior to that from March 1998 to January 2000 he was
Vice President for operations and support at Home Shopping Network, an operating
business of IAC/InterActiveCorp where he managed HSN's inbound and outbound
sales services and back office processes for Ticketmaster, Espanol Network, MCI,
First USA Visa, GE Capital as well as HSN's core television, Internet and
catalogue sales initiatives. Mr DePalantino has been engaged in the building of
call center operational infrastructures in Hong Kong, Shanghai and Tokyo. He
retired in 1992 from the U.S. Air Force after 23 years. He was Director of Sales
for Air Force recruiting. Mr. DePalantino has a B.S. in marketing from Regents
College of the University of the State of New York and an M.A. in organizational
management from the University of Phoenix.
Irving Greenman has, since June 2000, served in various executive positions for
us, including our Chief Financial Officer and Chief Executive Officer. From 1998
through 1999, he was Chief Financial Officer for Kaleidoscope Media Group, Inc.
(an entertainment company). Prior to this, he was the Chief Financial Officer
for Medica Media and Healthcare International. Both of which were engaged in the
healthcare industry. Mr. Greenman is a Certified Public Accountant licensed in
New York and in Florida.
William D. Rhodes served as our President from January 2002 through June 2003
and is now President of the group comprised of our ISP subsidiaries. In February
2001, Mr. Rhodes was also the founding President of National Online Services,
Inc. (presently our subsidiary establishing corporate infrastructure for this
new Internet service provider of "B-to-B", he remains the current President of
National Online and has been employed by us since the acquisition of National
Online Services, Inc. in March 2001. Mr. Rhodes performed consulting services
for us from September 2000 until February 2001. Prior to this, from February
1999 through July 2000, Mr. Rhodes served as Chief Operating Officer of Equalnet
Communications Corp. in Houston, Texas with responsibility for all company
operations including customer care, billing, provisioning and networks. From
1996 until 1999, Mr. Rhodes served as President and Chief Operating Officer of
Valu-Line Communications in Longview, Texas. Mr. Rhodes has an MSEE and BSEE
from the University of Missouri at Columbia and has been involved in
state-of-the-art electronics, navigation and communication projects throughout
his career including 20 years with Rockwell International.
Ricardo Sablon is our telephony.
55
Gerald M. Dunne, Jr. has been our Executive Vice President in charge of Sales
and Marketing since 2000. He was formerly the Chairman and Chief Executive
Officer of Group Long Distance Inc., a NASDAQ traded long distance reseller from
1988 through 1999. Mr. Dunne led the company to over 200,000 residential and
small business subscribers before leaving to become Chief Executive of our
subsidiary, One World Public Communications Corp. Mr. Dunne also previously
worked in the Accounting Department of Union Carbide Corporation in Danbury,
Connecticut.
Harry Fozzard has been our Chief Marketing Officer since mid-2002 in various
executive positions. He joined us from LeanForward, Inc. of Houston, Texas where
he was Chief Executive Officer from 2001 to 2002. From 2000 to 2001 he was Vice
President of the eBusiness Group of HTE8 of Houston, Texas and from 1998 to
2000, he was an independent consultant for Equalnet Communications Corp.
Sneharthi Roy has been our Vice President of Call Center Operations since July,
2003. From 2001 to 2003, he was employed as head of Call Center Operations for
HCL Information Systems Ltd. of India. From 2000 to 2001 he was General Manager
of Globsyn Technologies Ltd. He was regional manager of Atlas Copco AB Sweden
from 1995 to 2000.
Deborah Gambone has been our general counsel since December 2001 and was elected
Secretary and a Vice President of ours in November 2002. From 2000 to 2001 she
was a contracts manager and corporate counsel for Telecomputing, Inc. of Ft.
Lauderdale, Florida. She also worked as in-house counsel for International
Research Group, Inc. of Boca Raton, Florida from 1999-2000. Prior to this, she
was corporate counsel for Global Mindlink Foundation, a non-profit entity
specializing in funding charitable events for children.
David Berman is a practicing attorney in Miami, Florida and a director since
2002. Since 1983, Mr. Berman has been a partner in Berman & Berman, a
partnership in Miami, Florida specializing in tax law and business planning.
Prior to this he was a member of the firm of Bedzow & Korn of Miami.
Kenneth Elan has been a director since June 2003. He has been a practicing
attorney in New York City for over twenty-five years. He specializes in
litigation concentrating in corporate and commercial litigation.
John W. Cooney has been a Director of ours since July, 2003. Since 2000, Mr.
Cooney has been a Vice President for Lionstone Group, Inc., owner of the Seville
and the Ritz-Carlton Hotels on Miami Beach, DuPont Plaza in Miami, Sheraton
Curacao Resort, Princess Beach Resort Curacao, and Holiday Inn Aruba. From 1997
through 2000, he was President of Westbourne, Inc., an import-export company. He
retired in 1997 from Coopers & Lybrand's Miami office where he served as Senior
Tax Partner. While with Coopers & Lybrand, he served on several committees in
the firm, having responsibility for review of all real estate tax oriented
investments in which the firm was involved. Mr. Cooney provides tax and
financial consulting services specializing in taxation, including foreign
taxation, real estate and partnerships. Mr. Cooney has provided expert witness
testimony in many proceedings involving real estate, condominium conversions and
other related matters.
56
Executive officers are elected annually by the our Board of Directors to hold
office until the first meeting of our Board of Directors following the next
annual meeting of Shareholders and until their successors are chosen and
qualified.
Staff Relationships
There are no family relationships among our executive officers or directors.
Nevertheless, certain relationships exist between directors or significant
shareholders and certain US based nonofficer management and staff employees of
the Company.
INFORMATION CONCERNING THE BOARD
The Board of Directors held one meeting during the year ended December 31, 2003.
During that year all other actions were taken through unanimous written
consents.
AUDIT COMMITTEE
Prior to August 14, 2003, the Board of Directors acted as the Audit Committee as
permitted by the rules of the Securities & Exchange Commission. Effective August
14, 2003, however, we established an Audit Committee consisting of three
independent directors. John Cooney is chairman of the audit committee and our
financial expert under the rules of the Securities & Exchange Commission. Mr.
Cooney has over thirty years experience as a partner of a leading public
accounting firm. He does not have nor does any other director member of the
committee, have a prior relationship with us and each is independent under the
rules of the American Stock Exchange.
57
ETHICS CODE
The Company has adopted a code of ethics applicable to its chief executive
officer and chief financial officer. The code is included as an exhibit filed
with our Annual Report on Form 10 KSB for 2002.
EXECUTIVE COMPENSATION
The following table sets forth information concerning compensation paid or
accrued by us or any of our subsidiaries for services rendered during the fiscal
year ended December 31, 2003 by all persons who acted as a Chief Executive
Officer and for the four highest paid officers earning in excess of $100,000
during 2003.
SUMMARY COMPENSATION TABLE
[Enlarge/Download Table]
Annual Compensation Long-Term Compensation Securities Underlying
Bonus
Name and Principal Position Year Salary ($) Awards Options
--------------------------- ---- ---------- -------- --------
Martin Miller (1)....................... 2003 None -- --
Chief Executive Officer................. 2002 None
2001
David Srour............................. 2003 $222,500 300,000
Chief Operating Officer................. 2002 186,969 50,000
2001 28,000 40,000
Irving Greenman (1)..................... 2003 285,000 200,000
Chief Financial Officer................. 2002 300,000 75,000
2001 200,000 200,000
Gerald Dunne............................ 2003 193,750 300,000
Vice President.......................... 2002 146,315 50,000
2001 50,000
Ricardo Sablon.......................... 2003 176,750 200,000
Vice President.......................... 2002 141,219 25,000
2001 75,414 150,000
------------
(1) Mr. Greenman was Chief Executive Officer until October, 2002 when Mr.
Martin Miller assumed that position.
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OPTIONS
Set forth below with respect to the Officers named above is further information
concerning options to purchase common stock under our stock option plan.
OPTION GRANTED IN 2003
[Enlarge/Download Table]
Number of Percent of total
Securities options/granted
Underlying to employees Exercise or Epiration
Name options granted in fiscal year base price date
------ --------------- ---------------- ------------ ---------
David Srour...................... 300,000 7.7% 3.50 2008
Irving Greenman.................. 200,000 5.1% 3.50 2008
Gerald Dunne..................... 300,000 7.7% 3.50 2008
Ricardo Sablon................... 200,000 5.1% 3.50 2008
All of the options have a term of five years and have the same vesting terms.One
third of the shares subject to the option vest on the first anniversary of grant
with an additional third vesting on the next two anniversary dates.
Options Exercised and Fiscal Year End Options Retained
No options were exercised by any above named officer in 2003. The market price
our common stock on December 31, 2003 was above the exercise price of all
outstanding options and consequently all these options were in the money.
Set forth below is certain information relating to options retained by the above
named officers at December 31, 2003:
[Enlarge/Download Table]
Number of securities underlying Value of unexercised in-the-money
unexercised options at year end options at year end
Name Vested Not Vested Vested Not Vested
---------- ---------- ---------- ---------- ----------
David Srour............................ 26,667 313,333 $60,000 $705,000
Irving Greenman........................ 133,333 266,667 300,000 600,000
Gerald Dunne........................... 33,333 313,667 75,000 705,750
Ricardo Sablon......................... 100,000 250,000 225,000 562,500
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Stock Option Plans
We have adopted an option plan entitled the Global Asset Holdings 2001 Stock
Option Plan (the "Option Plan"). The purpose of the Option Plan is to provide us
with a vehicle to attract, compensate and motivate selected eligible persons,
and to appropriately compensate them for their efforts, by creating a
broad-based stock plan which will enable us, in our sole discretion and from
time to time, to offer to or provide such eligible persons with incentives or
inducements in the form of awards as such term is defined below, thereby
affording such persons an opportunity to share in potential capital appreciation
of our common stock.
The Option Plan was approved by the board of directors and is subject to
approval by the shareholders. A total of 4,000,000 shares of common stock are
available for issuance under the plan.
Under the Option Plan, an eligible person is any person who, at the applicable
time of the grant or award under the Option Plan, is an employee, a director
and/or a consultant or advisor of ours, or of any parent or subsidiary. An award
can consist of. As of May 31, 2004, there were options outstanding to purchase
4,859,667 shares of common stock under the Option Plan.
The Option Plan provides for the granting of options which are intended to
qualify either as incentive stock options within the meaning of Section 422 of
the Internal Revenue Code of 1986 or as options which are not intended to meet
the requirements of such section ("non-statutory stock options"). The exercise
price of all incentive stock options must be at least equal to the fair market
value of such shares on the date of the grant or, in the case of incentive stock
options granted to the holder of more than 10% of our common stock, at least
110% of the fair market value of such shares on the date of the grant. The
maximum exercise period for which incentive stock options may be granted is ten
years from the date of grant (five years in the case of an individual owning
more than 10% of our common stock). The aggregate fair market value (determined
at the date of the option grant) of shares with respect to which incentive stock
options are exercisable for the first time by the holder of the option during
any calendar year shall not exceed $100,000.
The Option Plan provides for its administration by the board of directors or a
committee chosen by the board of directors, which has discretionary authority,
subject to certain restrictions, to determine the number of shares issued
pursuant to incentive stock options and non-statutory stock options and the
individuals to whom, the times at which and the exercise price for which options
will be granted.
The above description of the Option Plan is qualified in its entirety by
reference to the full text of the Option Plan, as well as the terms and
conditions of any award agreement governing the grant of an award under the
Option Plan. A copy of the Option Plan is included as an exhibit.
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Additional Options in 2004
On May 28 2004, we have granted additional options to purchase 150,000 shares of
our common stock at $3.55 per share to our employees and service providers
including options to an officer to purchase 60,000 shares of our common stock.
Director Compensation
Other than the payment of $500 per meeting to outside directors, we have no
compensation arrangements with our directors. In July 2002, we granted a stock
option to David Berman pursuant to our Stock Option Plan to purchase 100,000
shares of our common stock at forty-two cents ($0.42) per share. In 2003, we
issued options to purchase 50,000 shares to each of John Cooney and Kenneth Elan
at exercise prices of $4.50 and $3.50 respectively. All of the foregoing options
described in this paragraph are substantially similar to the options granted
executive officers described above We recently initiated a new independent
director compensation package. Each will receive $10,000 per annum and $5,000
for the audit committee.
SECURITY OWNERSHIP
The following table sets forth certain information regarding beneficial
ownership of the common stock as of, June 2004 by, each stockholder known by us
to be the beneficial owner of more than 5% of the outstanding common stock,
o each director of ours,
o each named officer,
o and all directors and executive officers as a group.
Except as otherwise indicated, we believe that the beneficial owners of the
common stock listed below, based on information furnished by such owners, have
sole investment and voting power with respect to such shares, subject to
community property laws where applicable The address of all the following is
11900 Biscayne Boulevard Miami Florida 13181.
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[Enlarge/Download Table]
Name of Number of Shares Approximate
Beneficial Owner Beneficially Owned Percentage
-------------------- ------------------ --------------
Martin Miller (1)(2)........................................ 2,873,921 26.2%
Stanley Myatt (1)........................................... 2,778,000 25.3%
Sheldon Goldstein........................................... 900,000 8.2%
David Srour (3)............................................. 93,334 *
Irving Greenman (3)......................................... 166,666 1.5%
David Berman (3)............................................ 51,666 *
Ricardo Sablon (3).......................................... 133,333 1.2%
Gerald Dunne (3)............................................ 100,000 *
John Cooney (3)............................................. 16,667 *
Kenneth Elan (3)............................................ 16,667 *
Directors & Officers as a group(1)(3)....................... 3,618,921 30.9%
------------
* Less than 1%.
(1) Including shares, registered in the name of Trans Voice LLC. Each of
Messrs. Miller and Myatt is deemed to beneficially own this percentage of
shares of common stock owned by Trans Voice by virtue of their or their
affiliate's 50% ownership of Trans Voice Investments Inc. which owns 98% of
Trans Voice LLC.
(2) Includes 95,921 shares owned by Mr. Miller and his spouse. It does not
include 122,500 shares owned by his spouse which Mr. Miller denies any
beneficial ownership.
(3) Represents shares underlying options exercisable within 60 days. In
addition to these options additional shares are subject to options not
exercisable within 60 days as follows:
Irving Greenman..................................... 233,334
David Berman........................................ 33,333
Kenneth Elan........................................ 33,333
David Srour......................................... 246,666
John Cooney......................................... 33,333
Ricardo Sablon...................................... 216,667
Gerald Dunne........................................ 250,000
All officers and directors as a group............... 1,606,666
Both Brookfield Investments Ltd. And Laurus Master Fund, Ltd. are record owners
of more than five percent of common stock as determined by relevant securities
regulation. Brookfield owns of record 770,000 shares and warrants to purchase
3,750,000 shares of our Common Stock. We have been advised by Brookfield that
all of our securities held by it are held as nominee for unrelated third parties
none of whom own a significant portion of our securities. Therefore there is no
owner of the shares owned by Brookfield which has a fair percent on greater
interest. Laurus owns a $5,000,000 Secured Convertible Term Note which is
convertible into 1,689189 shares of our common stock and warrants to purchase
493,827 shares. Both the note and warrant contain a provision that prohibits
conversion or exercise, if upon such conversion or exercise Laurus would own
4.99% or more of the outstanding shares of common stock. This provision does not
apply to defaults and may be waived by Laurus.
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Equity Compensation Plan Information
Set forth below is information relating to shares subject to options under
compensation plans, including shares subject to options granted, for both plans
approved and not approved by stockholders, the weighted average exercise price
of these options and the number of shares which may be subject to options to be
granted in the future.
[Enlarge/Download Table]
Securities
Securities issuable Weighted- remaining
Plan Category upon exercise average available
------------ -------------------- ------------ ------------
Equity compensation plans
approved by security holders.............. 4,000,000 $3.36 None
Equity compensation plans not
approved by security holders.............. 859,667* $3.50 *1,290,333
Total..................................... 4,859,667 $3.38 1,290,000
* In November 2003 the board of directors approved an amendment to an
existing stock option plan increasing the number of shares subject to the
plan from 4,000,000 shares to 6,000,000 shares. The amendment will be
presented for stockholder approval at the next stockholders meeting. The
shares are part of the increased number of shares subject to the plan.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
On November 14, 2000 we acquired the entire interest of Trans Voice Investment
Ltd. in SavOn, a Florida limited liability company. Trans Voice Investment,
Ltd.'s which ultimately was an 80% interest in Savon. The consideration for
Trans Voice Investment Ltd.'s entire interest in SavOn was 2,000,000 shares of
our common stock. The original agreement provided for the issuance of additional
shares if during the six month period between January 1, 2001 to June 30, 2002
the accumulated net after tax income of SavOn was greater than $1,200,000. Then
for each $1.00 of any such excess of net after tax income of Trans Voice
Investments Ltd. was to receive additional shares having a market value of
$10.00 per share. Due to the cancellation of the SavOn's agreement with Global
Crossing, SavOn discontinued its telecommunications business. Trans Voice Ltd.
claimed that it was deprived of its right to additional shares as Savon would
have no earnings. In lieu of all claims of Trans Voice Investment, Ltd. against
us, we paid an additional $225,000 that was treated as part of the purchase
price.
On March 31, 2001, we acquired all the shares of National Online
Services in exchange for 2,000,000 of our shares. At the time Trans Voice
Investment Ltd. owned 80% of National Online Services, and was a principal
stockholder with the balance was owed by Sheldon Goldstein. Prior to the
transaction, Trans Voice Ltd. also held 2,000,000 shares or thirty three and one
third percent of our stock. As part of the transaction, we agreed to pay
additional contingent consideration to the former shareholders of National
Online, if during the eighteen month period between April 1, 2001 and September
30, 2002, the accumulated net after tax income of National Online was $1,200,000
or greater. In that event, we were required to issue a number of our additional
shares equal to any excess divided by ten. During 2001 the former owners of
National Online claimed that we failed to commence National Online's operations
timely and adequately fund it. As of November 30, 2001, the shareholders and we
agreed to eliminate the contingent right and settle all claims in consideration
for an additional 2,500,000 shares of our common stock and was a principal
stockholder. The value of the stocks was $5,750,000 based on the market price
of our stock at the time.
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In April 2001 National Online Services, Inc. entered into an oral agreement to
pay TransVoice Investments, Inc. $4.00 per customer (per month). On October 1,
2001, the agreement was modified because the parties agreed that the payments
would become excessive and burdensome. Trans Voice Inc. is unaffiliated with
Trans Voice Ltd. Pursuant to the Payment Agreement National Online and other
subsidiaries are obligated to pay Trans Voice Inc $150,000 per month as long as
National Online and affiliates operates their ISP programs. In addition, Trans
Voice Investments, Inc. is to receive $1.00 for each additional customer in
excess of 100,000 customers in any given month. National Online is also
obligated to provide office space and services to Trans Voice Investments, Inc.
The agreement constitutes consideration for services including services as a
finder provided in connection with the organization of National Online. Messrs.
Stanley Myatt and Martin Miller, or their affiliates, are sole stockholders of
Trans Voice Investments, Inc. This corporation, together with Messrs. Miller and
Myatt, individually own the entire interest of Trans Voice L.L.C. which has been
our principal shareholder since June 2002. Mr. Miller is our chief executive
officer. Subject to certain third party approvals the parties to the agreement
have agreed to limit the payment obligation to $5,100,000 of which $600,000 is
to be paid upfront and the balance in monthly installments of $250,000 through
December 2005.
We have determined to outsource many aspects of the development of our new
business plan. We have entered into an agreement with Trans Voice LLC, our
principal stockholder, to find, contract with, pay and supervise an entity to
assist in the development of our new business, including assisting us in:
o Managing existing vendor relationships for sales campaigns and growth
to meet and liven up new business needs.
o Managing site selection, lease negotiations, design and build-out, of
Epixtar's offshore call centers.
o Negotiating incentive and financial assistance packages with government
ministries and agencies on behalf of Epixtar.
o Identifying commercial opportunities for Epixtar to sell new services
and developing new products for Epixtar to market.
o Identifying and negotiating merger and acquisition situations for
Epixtar.
The arrangement requires Trans Voice to pay the third party and for us to
reimburse Trans Voice for these payments. Trans Voice receives no separate
consideration for this arrangement and any payment it receives is merely
reimbursement of amounts paid or to be paid to the subcontractor.
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In the third quarter of 2002, we repaid loans aggregating $175,000 to Trans
Voice Inc. and Stanley Myatt. The loans bore interest at seven percent per
annum.
Based upon agreements in principle reached on November 20, 2002, we entered into
an agreement on December 6, 2002 relating to the note to Brookfield Investments
Ltd. The note is in the amount of approximately $2,454,000 and due on demand. We
obtained an agreement to defer demand for payment for over two years, and for
Brookfield to subordinate its security interest in our and our subsidiaries'
accounts receivable to certain types of lenders. We agreed to issue 3,000,000
shares of the our restricted common stock and agreed to repay accrued interest
by July 2003. We retained the right to prepay the loan without any penalty at
any time. The stock was never issued pending negotiations that began in December
2002. After these negotiations, the agreement was amended ab initio to provide
for issuance of warrants to Brookfield to purchase 4,000,000 shares of our
common stock at an exercise price of $.50 per share in lieu of issuing the
3,000,000 shares to Brookfield. The warrants are exercisable during the period
from May 31, 2003 until May 31, 2006. Subsequent to March 2003 Brookfield
voluntarily agreed to surrender its security interest.
Trans Voice LLC has entered into an agreement pursuant to which it will be
compensated for any clients and acquisition candidates it introduces to us with
whom we consummate a transaction.
From time to time during 2003 and 2004, Messrs. Myatt and Miller or their
affiliates have advanced amounts on behalf of us on an interest free basis.
DESCRIPTION OF SECURITIES
General
The following description of our capital stock does not purport to be complete
and is subject to and qualified in its entirety by our certificate of
incorporation and bylaws, which are included as exhibits to the registration
statement of which this prospectus forms a part, and by the applicable
provisions of Florida law.
We are authorized to issue up to 50,000,000 shares of common stock, $.001 par
value per share, of which shares were issued and outstanding as of 2004. Our
certificate of incorporation authorizes 10,000,000 shares of "blank check"
preferred stock, of which we authorized the issuance of 250, 000 Series A
preferred Stock of which 23,510 shares are outstanding.
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Common Stock
Subject to the rights of holders of preferred stock, holders of shares of our
common stock are entitled to share equally on a per share basis in such
dividends as may be declared by our Board of Directors out of funds legally
available therefore. There are presently no plans to pay dividends with respect
to the shares of our common stock. Upon our liquidation, dissolution or winding
up, after payment of creditors and the holders of any of our senior securities,
including preferred stock, if any, our assets will be divided pro rata on a per
share basis among the holders of the shares of our common stock. The common
stock is not subject to any liability for further assessments. There are no
conversions or redemption privileges nor any sinking fund provisions with
respect to the common stock and the common stock is not subject to call. The
holders of common stock do not have any pre-emptive or other subscription
rights.
Holders of shares of common stock are entitled to cast one vote for each share
held at all stockholders' meetings for all purposes, including the election of
directors. The common stock does not have cumulative voting rights.
Preferred Stock
Our Board of Directors has the authority, without further action by the holders
of the outstanding common stock, to issue shares of preferred stock from time to
time in one or more classes or series, to fix the number of shares constituting
any class or series and the stated value thereof, if different from the par
value, and to fix the terms of any such series or class, including dividend
rights, dividend rates, conversion or exchange rights, voting rights, rights and
terms of redemption (including sinking fund provisions), the redemption price
and the liquidation preference of such class or series.
Series A Preferred Stock
In conjunction with the June 2003 financing, our board of directors created a
new Series A Convertible Preferred Stock, with 250,000 shares of this series
authorized. These shares have the following terms.
Conversion: Each share of Series A Preferred Stock will be convertible, at the
option of the holder, at any time after the date of issuance into a number of
shares of Common Stock determined by dividing $100 by the Series A Conversion
Price which was initially $3.50 but was reduced to $2.00 as a result of our
inability to meet performance standards described below.
Performance Adjustment: The conversion price may be adjusted based upon our
performance in 2003 and 2004 as set forth below:
ADJUSTED
CONVERSION
YEAR NET INCOME PRICE
---- ---------- ----------
2003 less than $5,000,000 $2.00
$5,000,000 - $7,500,000 $3.00
2004 less than $10,000,000 $2.00
$10,000,000-$12,500,000 $3.00
66
The adjusted price, if any, will not be greater than 5% below market value at
the time of the adjustment, but may not be below $2.00.
Anti-dilution Protection: With some exceptions including shares issued pursuant
to a merger or acquisition, or a lease line or line of credit, if the Company
issues or sells stock below the then current conversion price, then the
conversion price shall be reduced to the price of the sale or issuance. The
conversion price of the Preferred Stock will also be subject to adjustment to
reflect stock dividends and stock splits.
Automatic Conversion: The Series A Preferred will be automatically
converted into Common Stock upon the earlier to occur of: (1) the closing of a
public offering of our common stock at ten dollars or more per share with gross
proceeds of $50,000,000 or (2) the vote of the holders of a majority of the
Series A Preferred voting separately as a single class.
Dividend Rights: Holders of Series A Preferred shall be entitled to
receive cumulative dividends at an annual rate of $8.00 per share from legally
available funds. A pro-rata portion of unpaid or understated dividends will be
taken into account upon conversion or redemption
Liquidation Preference: In the event of any involuntary or
voluntary liquidation, dissolution, or winding up of us, the holders of Series A
Preferred shall be entitled to receive, prior and in preference to any
distribution to the holders of Common Stock, a liquidation payment in an amount
equal to two times the Series A Price per share plus any unpaid dividends.
Voting Rights: Subject to any additional voting rights provided by
law), the Series A Preferred vote on an as-converted basis together with the
Common Stock on all matters presented to stockholders.
Protective Provisions: We are required to obtain approval of
Series A Preferred holders for actions which could have an adverse effect on the
Series A Preferred including any actions resulting in:
any change in the rights, preferences or privileges of the Series
A Preferred advisor.
o a change of control.
o a change in any business other than the business engaged
in by the Company at the time of Closing.
Board Representation: The holders of the Series A Stock are entitled to one seat
on our board, or at the option of the shareholders observer rights to the board.
All related attendance expenses will be paid by us.
The Preferred shareholders have not designed a person to act as direction or
observer.
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Redemption Right: We have the right to repurchase the total
aggregate amount outstanding of Series A Preferred on each anniversary date of
the closing of this financing at a price equal to $200 per share subject to the
right of the holder to exercise before repurchase.
Convertible Notes
Secured Convertible Term Note
Amount Outstanding: The principal amount of this note is $5,000,000 of
which $1,930,000 is held in a restrictive account by LAURUS. Unless converted
the funds are to be released upon the fulfillment the following conditions:
(i) the effectiveness of a registration statement covering shares subject to
the note and warrants issued to Laurus; (ii) the entire $ 1,000,000 amount of
Bridge Notes described below has either been fully converted into common
stock and/or been repaid in full in cash and (iii) Laurus shall have received
written notification satisfactory to it from us special Federal Trade
Commission ("FTC") counsel, that a stipulated order settling the existing FTC
action has been executed by the Epixtar and FTC staff counsel, and has been
forwarded to FTC headquarters in Washington D.C. for review and final
approval by the FTC.
Interest: Interest on the portion of the note which is not restricted
the "prime rate" published in The Wall Street Journal from time to time, plus
two and one half percent (2.50%) the interest payable on the portion of the
principal amount of note maintained in the Laurus Restricted Account shall be
equal to 1% per annum
Term: Unless accelerated or converted the note is due May 14, 2007.
Conversion: The term note is convertible at a fixed conversion price
of $ 2.96 or 1,689,189 shares subject to adjustment without taking into account
shares which may be issued upon conversion of interest.
Conversion Price Adjustment: If at any time prior to the conversion or
repayment in full of the principal amount any shares of common stock or
securities convertible into common stock are issued al less than the fixed
conversion price in effect at the time of such issuance then the fixed
conversion price shall be adjusted.
Repayment: Repayment of the principal amount of the unrestricted
portion of the note shall be made in equal monthly installments of $90,909.09,
together with any accrued and unpaid interest on the portion of the principal
repaid. Payments shall begin on October 1, 2004 and shall continue to maturity.
In addition, in the event that any funds are released from the Laurus restricted
account for any reason other than as a result of a conversion the amount
released shall be applied in equal amounts to each future monthly payment
occurring after the 90th day following such release. Any principal amount that
remains outstanding on the Maturity Date shall be due and payable on the
Maturity Date.
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Method of Repayment: If the average closing price of our Common Stock
for the five (5) trading days immediately preceding a payment was greater than
or equal to 110% of the fixed conversion price, the holder shall convert all or
a portion of the monthly installment, in lieu of cash payment, in shares of
Common Stock the number of shares, however, converted may not exceed twenty five
percent (25%) of the aggregate dollar trading volume of the Common Stock for the
five (5) day trading period immediately preceding delivery of a Notice of
Conversion. Any part of the monthly installment not converted into shares of
Common Stock shall be paid in cash at the rate of 102% of the monthly payment.
Restrictions: The Notes contain restrictions on certain actions we or
our subsidiaries may take, including restrictions on dividends, stock
repurchases, incurring indebtedness, creating security interests in our assets
and changing our business.
Security: The notes are secured by all our assets and the assets of our
material operating subsidiaries.
Redemption Right: The Borrower will have the option of prepaying the
Note by payiment one hundred thirty percent (130%) of the principal amount of
this Note together with accrued but unpaid interest thereon and any and all
other sums due upon seven (7) business days prior notice.
Bridge Notes
Amount Outstanding: The principal amount of these notes is $1,000,000
Interest: Interest is at 8% per annum
Term: Unless accelerated or converted these notes are due April 22, 2005
Conversion: The note may be convertible by the holder at a conversion price of
$2.37.
Conversion Price Adjustment: The Conversion Price, and the number of shares to
be received upon conversion of the Notes will be subject to adjustment to
reflect stock dividends, stock splits and stock combinations, as well as upon
merger, sale of assets or reclassification. Standard weighted average
anti-dilution protection will be applied for issuance of additional shares below
the Conversion Price or
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Automatic Conversion: The notes are automatically converted upon the closing of
an underwritten public offering of common stock pursuant to an effective
registration statement with gross proceeds of $25,000,000 or more provided, that
there is an effective registration statement with a current prospectus available
covering for resale of the Common Stock underlying the Notes.
Required conversion: Provided there is an effective registration statement with
a current prospectus available providing for resale of the Common Stock
underlying the Notes, we may, at our option, require the conversion,of up to 20%
of the original amount of the Notes, plus accrued and unpaid interest if the
market price of the Common Stock is $6.00 or greater for twenty (20) consecutive
trading days and the average daily trading volume of the Common Stock during
that period is at least 30,000 shares a day. We may also,at it our option,
require the conversion, of up to an additional 20% of the original amount of
the Notes, plus accrued and unpaid interest if the market price of the Common
Stock is $7.00 or greater for twenty (20) consecutive trading days and the
average daily trading volume of the Common Stock during such twenty (20) day
period is at least 50,000 shares a day.
Protective Provisions: The notes contain limitations on certain actions we may
take including the incurrence of indebtedness on investments unrelated to our
business, on dividends and distributions and repurchases asset sales, on
management and employee options
Security: These notes are covered by the same security as the Secured
Convertible Term Note pursuant to an intercreditor agreement.
7% secured convertible notes
Amount Outstanding: The principle amount of these notes is $500,000
Interest: The interest rate is 7% per annum
Term: These notes are due December 8, 2004
Conversion: The note may be converted by the holder at a conversion price of
$2.50 (after a performance adjustment based on 2003 results similar to that
contained in the terms of our preferred stock and described above.
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Conversion Price Adjustment: The conversion price shall be adjusted if with some
exceptions including shares and issued pursuant to a merger or acquisition, or a
lease line or line of credit, we issue or sell stock below the then current
conversion price.
Automatic Conversion: The notes are automatically converted into Common Stock
upon the closing of a public offering of our common stock at ten dollars or more
per share with gross proceeds of $50,000,000.
Required Conversion: We may require conversions if the notes at the current
conversion price once each consecutive 90-day period until maturity, of up to
20% of the original principal amount plus accrued interest in the event that the
market price of our common stock is $10.00 or greater for thirty (30)
consecutive trading days prior to the date of any notes we may only do so if
there is an effective registration statement covering the resale of the shares
subject to the Note with current prospectus available.
Redemption Right: We have the right to repurchase the total aggregate amount
outstanding of the notes at a price of 103% of the amount of the notes.
Security: The notes are collateralized by a security interest in accounts
receivable which may be in effect subordinated to other security interests of
ours as long as $1,000,000 is free of these prior interests.
Warrants
Brookfield Warrants
We have issued warrants to Brookfield Investments Ltd. to purchase 4,000,000
shares of our common stock at fifty cent per share. The warrant expires in May
2006. The exercise price is adjusted based upon stock splits, reverse splits and
similar occurrences.
Sands Bros Investment Banking Warrants
In April 2003, we issued warrants to purchase 130,000 shares of our Company
stock to Sands Brothers & Co., Ltd. with whom we had entered into an investment
banking arrangement. These warrants expire in October 2008 and are exercisable
at $3.39 per share subject to antidilution provisions. These warrants were
distributed to designees of Sands Brothers. The agreement with Sands Brothers
has been terminated.
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Private Placement Warrants:
In June 2003, we issued warrants to purchase 329,140 shares of our common stock
pursuant to our private placement. These warrants expire in June 2008 and were
initially exercisable at $7.00 per share. The registration rights agreement we
entered into with these purchasers provided for a reduction of the warrant
exercise price if we did not have an effective registration statement covering
the sale of the shares upon conversion of the preferred stock and exercise of
the warrants within 90 days of the grant of the warrants. As a result, the
exercise price of the warrants has been reduced to $5.10 per share and may be
further reduced to take in account antidilution provision. The exercise price of
these warrants is also adjusted upon stock splits, reverse splits,
reclassification and sales of stock below the exercise price.
We also issued warrants to purchase 64,341 shares of our common stock to Sands
Bros and Alpine Capital Parties Ltd. who provided services in connection with
our private placement. These warrants expire in June 2008 and are exercisable at
5.00 per share.
Warrants Granted to Vendors
In July 2003, we issued five-year warrants to purchase 27,742 shares of our
common stock at an exercise price of 5.00 per share to Alpine Capital Partners
for services.
Warrants Granted to Investment Adviser
We have granted 100,000 five-year warrants to a Maximum Group LLC. an investment
adviser in consideration for services to be rendered to us. The Warrants are
exercisable at a price of $ 6.00 per share.
Warrants Issued to 7% Noteholders
In connection with the our 7% convertible debenture sale we issued to the
noteholders five year warrants to purchase 62,500 shares of our common stock at
an exercise price of $5. The price is subject to dilution including price
dilution. In addition the exercise price is reduced by 10% each 90 days we fail
to file a registration statement, covering the shares subject to the notes and
warrant. Once consecutive 90-day period until maturity, we may require the
exercise, at the Exercise Price, of up to 20% of the original number of warrants
in the event that the market price of the our common stock is $10.00 or greater
for thirty (30) consecutive trading days, provided there is an effective
registration statement covering the resale of the shares subject to the
warrant with current prospectus available.
Bridge Warrants
In connection with the our Bridge Notes we issued to the noteholders five year
warrants to purchase 34,722 shares of our common stock at an exercise price of
$5.05. The exercise price and number of shares is subject to price dilution and
the number of shares may be increased if we do not timely file a registration
statement convey the underlying shares to these warrants and the notes. Provided
there is an effective registration statement with a current prospectus available
providing for resale of the Common Stock issuable upon exercise of the warrant,
we may, at our option, require the conversion, of up to 20% of the original
amount of the Notes, plus accrued and unpaid interest if the market price of the
Common Stock is $6.00 or greater for twenty (20) consecutive trading days and
the average daily trading volume of the Common Stock during that period is at
least 30,000 shares a day. We may also, at our option, require the conversion,
of up to an additional 20% of the originalnumber of warrants, plus accrued and
unpaid interest if the market price of the Common Stock is $7.00 or greater for
twenty (20) consecutive trading days and the average daily trading volume of the
Common Stock during such twenty (20) day period is at least 50,000 shares a day.
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Wedge Noteholder Warrants
In connection with the wedge noted described above we issued to the noteholders
five year warrants to purchase shares of our common stock at an exercise price
of $4.05. The price is subject to dilution including price dilution. The number
of warrants increases if we do not timely file our registration statement
covering the shares subject to the notes and warrant. Provided there is an
effective registration statement with a current prospectus available providing
for resale of the Common Stock underlying the warrants, we may, at our option,
require the exercise, of up to 20% of the original amount of the warrants, plus
accrued and unpaid interest if the market price of the Common Stock is $6.00 or
greater for twenty (20) consecutive trading days and the average daily trading
volume of the Common Stock during that period is at least 30,000 shares a day.
We may also, at our option, require the exercise of, of up to an additional 20%
of the original amount of the warrants, plus accrued and unpaid interest if the
market price of the Common Stock is $7.00 or greater for twenty (20) consecutive
trading days and the average daily trading volume of the Common Stock during
such twenty (20) day period is at least 50,000 shares a day.
Laurus Warrant
We issued two warrants to Laurus in connection with our note
transaction. These warrants expire in May 2011. One warrant is to purchase
296,29 shares of our common stock. The exercise price is $4.05 for the first
164,609 shares and a price of $4.46 for any additional shares purchased. The
second warrant is only exercisable if the restricted cash held by Laurus is
released. This warrant is for the purchase of 197,531 shares. The exercise price
is $4.46 for the first 32,922 shares acquired and $4.66 for any additional
shares purchased hereunder. Both warrants have a cashless exercise features.
Placement Agent Warrants
In connection with our 2004 note transactions we issued warrants to
purchase 254,317 shares of common stock. Of these, warrants to purchase 34,722
shares are exercisable at $5.55; warrants to purchase 219, 595 shares are
exercisable at 4.45, of which warrants to purchase 67,568 shares may not be
exercised until the restrictive cash is released. The warrants are similar to
the Bridge Noteholders warrants except these warrants provide for cashless
exercise.
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Transfer agent
The transfer agent for our common stock is Interwest Transfer Company, Inc. of
1981 East 4800 South Street, Salt Lake City, Utah 84117. Their telephone number
is (801)-272-7294.
Disclosure of Commission Position on Indemnification for Securities Act
Liabilities
Our bylaws provide that we will indemnify our officers and directors for costs
and expenses incurred in connection with the defense of actions, suits, or
proceedings against them on account of their being or having been directors or
officers of, absent a finding of misconduct in the performance of their duties.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to our directors, officers and controlling persons
pursuant to the above described provisions, or otherwise, we have has been
advised that in the opinion of the Securities and Exchange Commission their
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against these liabilities (other
than the payment by us of expenses incurred or paid by any director, officer or
controlling person of the small business issuer in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, issuer will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of the
issue.
Anti-takeover Provision of Florida Law
Section 607.0902 of the Florida Business Corporation Act prohibits the voting of
shares in a publicly-held Florida corporation that are acquired in a "control
share acquisition" unless the holders of a majority of the corporation's voting
shares (exclusive of shares held by officers of the corporation, inside
directors or the acquiring party) approve the granting of voting rights as to
the shares acquired in the control share acquisition or unless the acquisition
is approved by the corporation's board of directors, unless the corporation's
articles of incorporation or bylaws specifically state that this section does
not apply. A "control share acquisition" is defined as an acquisition that
immediately thereafter entitles the acquiring party to vote in the election of
directors within each of the following ranges of voting power: (i) one-fifth or
more, but less than one-third of such voting power: (ii) one-third or more, but
less than a majority of such voting power; and, (iii) more than a majority of
such voting power. Our bylaws do not negate this provision of the Florida law.
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Shares Eligible for Future Resale
We presently have 11,158,338 shares of common stock issued and outstanding of
which 6,516,615 shares are "restricted securities," which may be sold only in
compliance with Rule 144 under the Securities Act of 1933, as amended or other
exemptions from registration requirements of this act. Rule 144 provides, in
essence, that a person holding restricted securities for a period of one year
after payment therefore may sell, in brokers' transactions or to market makers,
an amount not exceeding 1% of the outstanding class of securities being sold, or
the average weekly reported volume of trading of the class of securities being
sold over a four-week period, whichever is greater, during any three-month
period. (Persons who are not our affiliates and who had held their restricted
securities for at least two years are not subject to the volume or transaction
limitations.) Substantially all of our presently issued shares of common stock
will be capable of sale pursuant to Rule 144 subject to the foregoing limitation
including our 7,800,000 shares which are 144 eligible or will be by July 2004.
The sale of a significant number of these shares in the public market may
adversely affect prevailing market prices of our securities.
SELLING SHAREHOLDERS
Set forth below is a description of the transactions pursuant to which
securities were issued to the selling stockholders as well as additional
information.
In connection with the execution of an investment, advisory agreement
between us and Sands Brothers & Co. Ltd., a broker dealer, we issued five year
warrants to pur 130,000 shares of our common stock to Sands Brothers. These
warrants are exercisable at $3.39 at per share. These warrants were later
distributed to persons associated with Sands Brothers. The Investment Advisor
Agreement has terminated. We had no relationship with Sands Brothers prior to
this transaction.
Included in the number of shares of the selling stockholders are shares
issuable (or in one case issued upon conversion of preferred stock and exercise
of warrants in our Preferred Stock provide placation. In a June 2003, we sold
23,510 shares of our convertible preferred stock for an aggregate gross
consideration of $2,351,000. For each share sold, the purchasers received five
year warrants to purchase fourteen shares of our common stock or a total of
329,140 at an exercise price of $7.00 per share (which has since been reduced to
$5.10 pursuant to the terms of the Warrant). The preferred shares are
convertible at an initial conversion price of $3.50 which has been reduced to
$2.00 for at least one year pursuant to performance standards. The conversion
price and exercise price are both subject to anitdilution provisions.
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In connection with the preferred stock, private placement we issued
five year warrants to provide a total of 64,243 shares of our common stock at an
exercise price of $5.00 per share to persons who assisted us, including Sands
Brothers and Alpine Capital Partners Group. We also issued five year warrants to
Alpine Capital Partners to acquire 27,728 shares of our Common stock at 5.00 per
share. The resale of the shares issuable upon exercise of these options in
addition to the shares subject to these warrants, Sands brothers has received
warrants to purchase an additional 84,466 shares of our common stock in
connection with a subsequent private placement. The shares subject to these
warrants are subject to the concurrent offering.
In July 2003 we issued 127,117 shares of our common stock in
satisfaction of over an aggregate of $400,000 of indebtedness consisting of
principal and interest of two notes due K&L International Enterprises, Inc. and
Caribe Telesales Consultants unaffiliated telemarketing contractors. These
contractors provided services to us and the notes represented amounts due for
this service.
We issued 100,000 five year warrants to acquire our shares of our
common stock at $5.00 per share to Maxim Group LLC upon signing of a advisory
agreement. The resale of shares issuable upon exercise of these warrants is
included herein. Maxim Group has been issued warrants to purchase 169,857 shares
of common stock for acting as a placement agent in our recent 2004 note
offerings. The resale of these shares is subject to the concurrent offering. In
addition an affiliate of Maxim owns an additional 250,000 warrants.Therefore
Maxim and its affiliates presently own 519,857 shares of common stock subject to
warrants.
In December 2003, we sold our 7% convertible notes issued in connection
with loan to us of $ 500,000 the note is now convertible into 200,000 shares of
our common stock. We also issued to the lenders five year warrants to purchase
62,500 shares of our common stock at a present exercise price of $4.00 per
share. The resale of these shares is included. An affiliate of some of these
purchasers entered into a advisory agreement and acquired 50,000 shares of our
common stock.
In April 2004 we purchased assets at a Philippines contact center and
issued 64,035 shares of our common stock. These shares are included.
The following table contains information concerning the beneficial
ownership of our common stock by the selling stockholders. The table assumes all
of the shares being offered will be sold and unless otherwise described these
shareholders do not own any additional shares of our common stock. Because the
selling stockholders may sell all, some or none of the shares that it holds, the
actual number of shares that will be sold by the selling stockholders upon or
prior to termination of this offering may vary. The selling stockholders may
have sold, transferred or otherwise disposed of all or a portion of their shares
since the date on which they provided the information regarding their common
stock in transactions exempt from the registration requirements of the
Securities Act. Additional information concerning the selling stockholders may
be set forth from time to time in prospectus supplements to this prospectus.
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Identity of Shares
Stockholder or Group Offered
Name
Michael R. Hamblett(1) 13,440
Wolverine Trading, LLC(1)(8)(9) 64,000
Truk Opportunity Fund, LLC(1)(10) 12,800
Abingdon Investments, LLC(1) 66,700
SDS Merchant Fund, LP(1)(9) 320,000
Daniel A. Gooze(1) 128,000
trustee
Otape Investments LLC(1)(11) 192,000
WEC Partners(1)(12) 64,000
James Ricchiardi(1) 66,700
Cristopher Fiore(1) 64,000
CD Investment Partners(1)(13) 101,033
Steven B. Rosner(1) 224,000
Judith Barclay(1) 64,000
Wayne Saker(1) 64,000
MSS Children's Trust(2) 29,250
SSS Children's Trust(2) 29,250
Howard Sterling(2) 39,500
Edmund Belak 19,000
Bruce Silver(2) 13,000
Sands Brothers(3) 30,657
Alpine Capital Partners(4) 61,314
K&L International Enterprises(5)(14) 32,036
Caribe Telesales Consultants, Inc.(5) 95,081
Maxim Partners, LLC(6) 100,000
Generation Capital Associates(7)(15) 200,000
The Hart Organization Corp.(7)(16) 26,250
Howard Commander(7) 26,250
I-Call(8) 65,034
(1) Shares issued or issuable in connection with securities acquired in our
preferred stock private placement. These include shares subject to
preferred stock and warrants. Except in the case of shares already issued
upon conversion the foregoing does not reflect additional shares, which
may be issued for accrued dividends.
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(2) Shares issuable upon exercise of the advisory warrants originally issued
to Sands Brothers. Each person had a relationship as employee, consultant
or affiliate of Sands Brothers at the time they acquired these warrants.
(3) These shares are subject to warrants for services in our private
placement.
(4) These shares are subject to warrants for services in connection with our
Preferred Stock private placement and for future services.
(5) Shares acquired in satisfaction for telemarketing fees payable to these
holders.
(6) Shares subject to warrants issued in connection with an investment
advisory agreement. Maxim Partners LLC, owns 98% of Maxim Group LLC, a
registered broker dealer. MJR Holdings LLC owns 72% of Maxim Partners
LLC. Mike Rabinowitz is the sole manager of MJR Holdings and has
principal voting and dispositive power with respect to the securities
owned by Maxim Partners LLC.
(7) Shares issued upon conversion if our 7% convertible secured notes and
related warrants.
(8) Wolverine Trading Funding A, LLC is owned by Robert Bellick,
Christopher Gust and Eric Henchel.
(9) SDS Capital Partners, LLC is the partner of SDS Merchant Fund,
LP. general
(10) Michael E. Fein and Stephen E. Saltzstein, as principals of Atoll
Asset Management, LLC, the managing member of Truk Opportunity Fund, LLC,
exercise investment and voting control over the shares. Both Mr. Fein and Mr.
Saltzstein disclaim beneficial ownership of the common stock owned by this
selling shareholder.
(11) OTAPE INVESTMENTS LLC is owned by OJA Financial Group LP.
(12) WEC PARTNERS LLC is owned by Ethan Berkowitz, Jaime Hartman and
Daniel Saks.
(13) John Ziegelman, as President of CD Capital Management, LLC, the
investment manager of CD Investment Partners, Ltd., may be deemed to have
beneficial ownership of the shares of Epixtar Corp. common stock underlying the
Series A Preferred Stock and Warrants owned by CD Investment Partners, Ltd. Mr.
Ziegelman disclaims beneficial ownership of such shares.
(14) K & L International Enterprises, Inc. is individually owned by
Larry Powalisz.
(15) This entity is beneficially owned by High Capital Finding which is
beneficially owned by Frank Hart.
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The Hart Organization Corp. is beneficially owned by Frank Hart.
Plan of Distribution
Sale of the shares may be made from time to time by the selling stockholders, or
subject to applicable law, by pledgees, donees, distributees, transferees or
other successors in interest. These sales may be made:
o on the over-the-counter market
o on foreign securities exchange
o in privately negotiated transactions or otherwise
o in a combination of transactions at prices
o at terms then prevailing
o at prices related to the then current market price
o at privately negotiated prices
Without limiting the generality of the foregoing, the shares may be sold in one
or more of the following types of transactions.
o A block trade in which the broker-dealer so engaged will
attempt to sell the shares as agent but may position and
resell a portion of the block as principal to facilitate the
transaction purchases by a broker or dealer as principal and
resale by such broker or dealer for its account pursuant to
this Prospectus;
o an exchange distribution in accordance with the rules of such
exchange;
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and
o face-to-face transactions between sellers and purchasers
without a broker dealer. In effecting sales, brokers or
dealers engaged by the selling stockholders may arrange
for other brokers or dealers to participate in the
resales.
Brokers, dealers or agents may receive compensation in the form of commissions,
discounts or concessions from the selling stockholders in amounts to be
negotiated in connection with the sale. These brokers or dealers and any other
participating brokers or dealers may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales and any such
commission, discount or concession may be deemed to be underwriting discounts or
commissions under the Securities Act.
79
Information as to whether underwriters who may be selected by the selling
stockholders, or any other broker-dealer, is acting as principal or agent for
the selling stockholders, the compensation to be received by underwriters who
may be selected by the selling stockholders, or any broker-dealer, acting as
principal or agent for the selling stockholders and the compensation to be
received by other broker-dealers, in the event the compensation of such other
broker-dealers is in excess of usual and customary commissions, will, to the
extent required, be set forth in a supplement to this prospectus. Any dealer or
broker participating in any distribution of the Shares may be required to
deliver a copy of this prospectus, including a prospectus supplement, if any, to
any person who purchasers any of the Shares from or through such dealer or
broker.
We have advised the selling stockholders that during if at any time they may be
engaged in a distribution of the shares they are required to comply with
Regulation M promulgated under the Exchange Act. The selling shareholders have
acknowledged such advice by separate agreement and agree therein to comply with
such regulation. In general, Regulation M precludes the selling stockholders,
any affiliated purchasers and any broker-dealer or other person who participates
in such distribution from bidding for or purchasing or attempting to induce any
person to bid for or purchase any security which is the subject of the
distribution until the entire distribution is complete. A "distribution" is
defined in the rules as an offering of securities that is distinguished from
ordinary trading activities and depends on the "magnitude of the offering and
the presence of special selling efforts and selling methods". Regulation M also
prohibits any bids or purchases made in order to stabilize the price of a
security in connection with the distribution of that security.
We have agreed to indemnify the selling stockholder against certain liabilities,
including liabilities under the Securities Act of 1933, or to contribute to
payments to which such stockholder may be required to make in respect thereof.
Legal Matters
The validity of the common stock offered hereby will be passed upon for Epixtar
Corp. by Michael D DiGiovanna Esq., 212 Carnegie Center, Suite 206, Princeton
New Jersey 08540.
Experts
Our financial statements included in this prospectus and elsewhere in the
registration statement, to the extent and for the periods indicated in their
respective reports, have been audited by Rachlin Cohen & Holtz LLP and Liebman
Goldberg & Drogin LLP independent certified public accountants, whose reports
thereon appear elsewhere herein and in the registration statement.
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Available Information
We have filed with the Commission, Washington, D.C. 20549, a Registration
Statement on Form SB-2 under the Securities Act with respect to our common stock
offered hereby. This prospectus does not contain all of the information set
forth in the registration statement and the exhibits and schedules to the
registration statement. For further information with respect to us and our
common stock offered hereby, reference is made to the Registration Statement and
the exhibits and schedules filed as a part of the Registration Statement.
Statements contained in this prospectus concerning the contents of any contract
or any other document are not necessarily complete; reference is made in each
instance to copy of such contract or any other document filed as an exhibit to
the registration statement. Each such statement is qualified in all respects by
such reference to such exhibit. We are subject to the informational requirements
of the Securities Exchange Act of 1934, as amended and in accordance therewith
file annual, quarterly and special reports, proxy statements and other
information with the SEC. The registration statement, including exhibits and
schedules thereto, may be inspected without charge at the Commission's principal
office in Washington D.C., and copies of all or any part thereof may be obtained
from the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, after payment of fees prescribed by the Commission. The
Commission also maintains a WorldWideWesite that provides access to reports,
proxy and information statements and other information regarding registrants
that file electronically with the address http://www.sec.gov.
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You should rely only on the information contained in this document. We have not
authorized anyone to provide you with information that is different. This
document may only be used where it is legal to sell these securities. The
information in this document may only be accurate on the date of this document.
Additional risks and uncertainties not presently known or that are
currently deemed immaterial may also impair our business operations. The
risks and uncertainties described in this document and other risks and
uncertainties which we may face in the future will have a greater impact on
those who purchase our common stock from the Selling stockholder. These
purchasers will purchase our common stock at the market price or at a
privately negotiated price and will run the risk of losing their entire
investment.
Until ___________________, 2004, all dealers that effect transactions in
these securities, whether or not participating in this offering, may be
required to deliver a prospectus. This is in addition to the dealers'
obligation to deliver a prospectus when acting as underwriters and with
respect to their unsold allotments or subscriptions.
Typist make into column from prior page
82
EPIXTAR CORP. AND SUBSIDIARIES
INDEX TO FINANCIAL STATEMENTS
PAGE
----
REPORTS OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS F-1 - F-2
CONSOLIDATED FINANCIAL STATEMENTS
Balance Sheets F-3
Statements of Operations F-4
Statements of Stockholders' Equity (Deficiency) F-5
Statements of Cash Flows F-6
Notes to Financial Statements F-7 - F-38
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Epixtar Corp. and Subsidiaries
Miami, Florida
We have audited the accompanying consolidated balance sheet of Epixtar Corp. and
Subsidiaries as of December 31, 2003, and the related consolidated statements of
operations, stockholders' equity (deficiency), and cash flows for the year 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 the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of Epixtar
Corp. and Subsidiaries as of December 31, 2003, and the consolidated results of
their operations and their cash flows for the year then ended, in conformity
with accounting principles generally accepted in the United States.
As more fully described in Note 3, the Company is subject to certain
profitability and liquidity issues. Management's plans with respect to those
issues are also presented in Note 3.
RACHLIN COHEN & HOLTZ LLP
Miami, Florida
March 17, 2004
F-1
The Board of Directors
Epixtar Corp. and Subsidiaries
Formerly Global Asset Holdings, Incorporated and Subsidiaries
Miami, Florida
We have audited the accompanying consolidated balance sheets of Epixtar Corp.
and Subsidiaries formerly Global Asset Holdings, Incorporated and Subsidiaries
as of December 31, 2002, and the related consolidated statements of operations,
stockholders' equity, and cash flows for the years ended December 31, 2002 and
2001. These consolidated financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Epixtar Corp. and
Subsidiaries as of December 31, 2002, and the consolidated results of their
operations and their cash flows for the years ended December 31, 2002 and 2001,
in conformity with accounting principles generally accepted in the United
States.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 2 to the
financial statements, the Company has suffered recurring losses from operations
and has a negative working capital, which raise substantial doubt about the
Company's ability to continue as a going concern. Management's plans regarding
those matters are partially discussed in the Notes to financial statements.
The accompanying financial statements for the years ended December 31, 2002 and
2001 have been restated as discussed in Note 2.
Liebman Goldberg & Drogin, LLP
Garden City, New York
March 11, 2003, except for Note 2 as to which
the date is April 5, 2004
F-2
EPIXTAR CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
[Enlarge/Download Table]
March 31, December 31,
2004 2003 2002
---------- ---- ----
ASSETS (Unaudited) (Restated)
Current Assets:
Cash and cash equivalents (includes amounts held in escrow
of $855,502 in 2003) $ 146,014 $ 1,342,186 $ 722,674
Restricted cash 416,721 416,721 --
Accounts receivable, net 4,749,768 5,609,675 3,802,326
Prepaid expenses and other current assets 313,014 227,203 59,940
Deferred billing costs 172,833 271,256 154,246
------------ ------------ ------------
Total current assets 5,798,350 7,867,041 4,739,186
------------ ------------ ------------
Property and Equipment, Net 2,123,506 1,263,844 406,971
------------ ------------ ------------
Other Assets:
Goodwill 3,360,272 3,360,272 3,360,272
Deposits and other 467,827 491,637 76,716
------------ ------------ ------------
Total other assets 3,828,099 3,851,909 3,436,988
------------ ------------ ------------
Total assets $ 11,749,955 $ 12,982,794 $ 8,583,145
============ ============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY)
Current Liabilities:
Debt, current portion $ 274,844 $ 121,513 $ 483,786
Accounts payable 2,608,482 3,009,932 3,211,934
Accounts payable subject to compromise -- -- 385,401
Accrued interest 227,087 175,185 274,988
Accrued expenses and taxes 348,684 146,566 1,123,676
Deferred revenue 873,505 1,459,657 2,897,693
Note payable, stockholder 2,395,513 -- --
------------ ------------ ------------
Total current liabilities 6,728,115 4,912,853 8,377,478
------------ ------------ ------------
Long-Term Liabilities:
Note payable - stockholder -- 2,369,350 2,264,700
Debt, net of current portion 50,031 23,603 88,451
Common stock to be issued 424,375 279,000 --
------------ ------------ ------------
Total long-term liabilities 474,406 2,671,953 2,353,151
------------ ------------ ------------
Commitments and Contingencies -- -- --
Stockholders' Equity (Deficiency):
Convertible preferred stock, $.001 par value;
10,000,000 shares authorized; 23,510 shares issued and
outstanding in 2003 (liquidation preference $4,702,000) 24 24 --
Common stock, $.001 par value, 50,000,000 shares authorized;
10,677,067, 10,643,734 and 10,503,000 shares issued
and outstanding 10,677 10,644 10,503
Additional paid-in capital 18,451,362 18,442,395 13,391,873
Accumulated deficit (13,914,629) (13,055,075) (15,549,860)
------------ ------------ ------------
Total stockholders' equity (deficiency) 4,547,434 5,397,988 (2,147,484)
------------ ------------ ------------
Total liabilities and stockholders' equity (deficiency) $ 11,749,955 $ 12,982,794 $ 8,583,145
============ ============ ============
See notes to consolidated financial statements.
F-3
EPIXTAR CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
[Enlarge/Download Table]
Three Months Ended
March 31, Year Ended December 31,
2004 2003 2003 2002 2001
---- ---- ---- ---- ----
(Unaudited) (Unaudited) (Restated) (Restated)
Revenues $ 4,876,149 $ 12,366,775 $ 36,404,803 $ 26,250,851 $ 1,189,723
Cost of Sales 1,304,354 5,983,628 16,725,774 17,781,967 1,684,615
------------ ------------ ------------ ------------ ------------
Gross Profit (Loss) 3,571,795 6,383,147 19,679,029 8,468,884 (494,892)
------------ ------------ ------------ ------------ ------------
Expenses:
Selling, general and administrative 3,348,633 1,931,523 9,797,541 6,028,823 1,673,048
Consulting fees and reimbursements - related party 675,000 790,835 3,537,618 2,111,438 625,000
Provision for doubtful accounts 86,913 1,002,347 1,533,983 2,083,268 --
Depreciation 100,994 35,999 214,299 98,557 6,817
------------ ------------ ------------ ------------ ------------
4,211,540 3,760,704 15,083,441 10,322,086 2,304,865
------------ ------------ ------------ ------------ ------------
Income (Loss) from Operations (639,745) 2,622,443 4,595,588 (1,853,202) (2,799,757)
------------ ------------ ------------ ------------ ------------
Other Income (Expense):
Interest expense (215,887) (165,893) (542,280) (497,702) (90,597)
Gain on settlement of debts -- -- 324,966 -- --
Other income (expense) (3,922) -- 886 -- --
Loss on debt extinguishment -- -- -- (9,550,700) --
Amortization of purchased intangibles -- -- -- -- (361,434)
------------ ------------ ------------ ------------ ------------
(219,809) (165,893) (216,428) (10,048,402) (452,031)
------------ ------------ ------------ ------------ ------------
Income (Loss) from Continuing Operations (859,554) 2,456,550 4,379,160 (11,901,604) (3,251,788)
Gain (Loss) from Discontinued Operations -- -- -- (43,318) 267,190
------------ ------------ ------------ ------------ ------------
Income (Loss) Before Income Taxes (859,554) 2,456,550 4,379,160 (11,944,922) (2,984,598)
Provision for Income Taxes -- 480,000 -- -- --
------------ ------------ ------------ ------------ ------------
Net Income (Loss) $ (859,554) $ 1,976,550 $ 4,379,160 $(11,944,922) $ (2,984,598)
============ ============ ============ ============ ============
Net Income (Loss) Per Common Share:
Basic:
Continuing operations $ (0.08) $ 0.19 $ 0.22 $ (1.13) $ (0.42)
Discontinued operations -- -- -- -- 0.03
------------ ------------ ------------ ------------ ------------
Net income (loss) $ (0.08) $ 0.19 $ 0.22 $ (1.13) $ (0.39)
============ ============ ============ ============ ============
Diluted:
Continuing operations $ (0.08) $ 0.16 $ 0.16 $ (1.13) $ (0.42)
Discontinued operations -- -- -- -- 0.03
------------ ------------ ------------ ------------ ------------
Net income (loss) $ (0.08) $ 0.16 $ 0.16 $ (1.13) $ (0.39)
============ ============ ============ ============ ============
See notes to consolidated financial statements.
F-4
EPIXTAR CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIENCY)
[Enlarge/Download Table]
Preferred Stock Common Stock Additional
--------------- ------------ Paid-in Accumulated
Shares Amount Shares Amount Capital Deficit Total
------ ------ ------ ------ ------- ------- -----
Balance, January 1, 2001 (Restated) -- $ -- 6,000,000 $ 6,000 $ 1,000 $ (328,112) $ (321,112)
Year Ended December 31, 2001 (Restated):
Issuance of shares in acquisition -- -- 4,500,000 4,500 3,617,376 -- 3,621,876
Distribution in connection with acquisition -- -- -- -- -- (225,000) (225,000)
Issuance of shares for services -- -- 3,000 3 13,497 -- 13,500
Net loss -- -- -- -- -- (3,041,826) (3,041,826)
------- ------- ---------- --------- ----------- ------------ ------------
Balance, December 31, 2001 (Restated) -- -- 10,503,000 10,503 3,631,873 (3,594,938) 47,438
Year Ended December 31, 2002 (Restated):
Warrants issued in connection with debt
extinguishment -- -- -- -- 9,760,000 -- 9,760,000
Net loss -- -- -- -- -- (11,954,922) (11,954,922)
------- ------- ---------- --------- ----------- ------------ ------------
Balance, December 31, 2002 (Restated) -- -- 10,503,000 10,503 13,391,873 (15,549,860) (2,147,484)
Year Ended December 31, 2003:
Issuance of common stock for services -- -- 13,617 14 84,986 -- 85,000
Issuance of common stock in settlement of
liabilities -- -- 127,117 127 444,785 -- 444,912
Issuance of preferred stock, net of offering costs 23,510 24 -- -- 2,136,376 -- 2,136,400
Beneficial conversion feature of convertible debt -- -- -- -- 326,619 -- 326,619
Warrants issued with convertible debt -- -- -- -- 173,381 -- 173,381
Beneficial conversion feature of preferred stock -- -- -- -- 1,884,375 (1,884,375) --
Net income -- -- -- -- -- 4,379,160 4,379,160
------- ------- ---------- --------- ----------- ------------ ------------
Balance, December 31, 2003 23,510 24 10,643,734 10,644 18,442,395 (13,055,075) 5,397,988
Three Months Ended March 31, 2004 (Unaudited):
Issuance of common stock -- -- 33,333 33 8,967 -- 9,000
Net loss -- -- -- -- -- (859,554) (859,554)
------- ------- ---------- --------- ----------- ------------ ------------
Balance, March 31, 2004 (Unaudited) 23,510 $ 24 10,677,067 $ 10,677 $18,451,362 $(13,914,629) $ 4,547,434
======= ======= ========== ========= =========== ============ ============
See notes to consolidated financial statements.
F-5
EPIXTAR CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
[Enlarge/Download Table]
Three Months Ended
March 31, Year Ended December 31,
2004 2003 2003 2002 2001
---- ---- ---- ---- ----
Cash Flows from Operating Activities: (Unaudited) (Unaudited) (Restated) (Restated)
Net income (loss) $ (859,554) $ 1,976,550 $ 4,379,160 $(11,954,922) $(2,984,598)
Adjustments to reconcile net income (loss) to net cash and
cash equivalents provided by (used in) operating activities:
Depreciation and amortization 100,994 35,999 219,209 140,224 368,251
Provision for bad debt 86,913 1,002,347 1,533,983 2,083,268 --
Loss on debt extinguishment -- -- -- 9,550,700 --
Stock-based compensation 159,375 -- 260,000 -- 13,500
Interest paid with issuance of stock -- -- 40,446 -- --
Amortization of beneficial conversion feature of
convertible debenture 81,654 -- 27,218 -- --
Amortization of discount on convertible debenture 43,344 -- 14,448 -- --
Amortization of discount on stockholder loan 26,163 26,163 104,650 -- --
Changes in assets and liabilities:
(Increase) decrease in:
Accounts receivable 772,996 (1,526,231) (3,281,101) (5,154,083) (716,215)
Prepaid expenses and other (85,811) 48,344 (158,740) (58,274) 897
Deferred billing costs 98,423 (123,063) (117,010) (118,746) (35,500)
Deposits 23,810 (58,385) (366,611) (42,720) (30,973)
Increase (decrease) in:
Accounts payable and accrued expenses (174,467) (546,308) (1,304,679) 3,306,330 960,455
Accounts payable - subject to compromise -- -- (385,401) 385,401 --
Deferred revenues (586,152) (1,670,165) (1,438,036) 2,542,692 355,001
Income taxes payable -- 480,000 -- -- --
----------- ----------- ------------ ------------ -----------
Net cash and cash equivalents (used in) provided
by operating activities (312,312) (354,749) (472,464) 679,870 (2,069,182)
----------- ----------- ------------ ------------ -----------
Cash Flows from Investing Activities:
Cash paid for acquisition of Phoneboy, net of cash acquired -- -- (8,768) -- --
Acquisition of property and equipment (797,859) (77,384) (1,058,814) (304,062) (102,957)
Cash restricted by governmental agency -- -- (416,721) -- --
----------- ----------- ------------ ------------ -----------
Net cash and cash equivalents used in
investing activities (797,859) (77,384) (1,484,303) (304,062) (102,957)
----------- ----------- ------------ ------------ -----------
Cash Flows from Financing Activities:
Distribution (acquisition) of goodwill -- -- -- -- (225,000)
Proceedsofrom issuance of preferred stock -- -- 2,136,400 -- --
Proceeds from issuance of convertible debenture and warrants -- -- 500,000 -- --
Proceeds from notes payable -- -- -- 624,282 2,424,375
Repayment of notes payable and capital lease obligations (81,489) (22,169) (74,121) (351,299) --
Proceeds from exercise of stock options -- -- 14,000 -- --
----------- ----------- ------------ ------------ -----------
Net cash and cash equivalents provided by
financing activities (81,489) (22,169) 2,576,279 272,983 2,199,375
----------- ----------- ------------ ------------ -----------
Net Effect of Exchange Rates on Cash (4,512) -- -- -- --
----------- ----------- ------------ ------------ -----------
Net Increase (Decrease) in Cash and Cash Equivalents (1,196,172) (454,302) 619,512 648,791 27,236
Cash and Cash Equivalents, Beginning 1,342,186 722,674 722,674 73,883 46,647
----------- ----------- ------------ ------------ -----------
Cash and Cash Equivalents, Ending $ 146,014 $ 268,372 $ 1,342,186 $ 722,674 $ 73,883
=========== =========== ============ ============ ===========
Supplemental Disclosures:
Cash paid for interest $ 16,743 $ 86,101 $ 355,518 $ 497,702 $ 6,925
=========== =========== ============ ============ ===========
Noncash Financing and Investing Activities:
Purchase of equipment through capital leases $ 136,250 $ -- $ -- $ -- $ --
=========== =========== ============ ============ ===========
See notes to consolidated financial statements.
F-6
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
THREE MONTHS ENDED MARCH 31, 2004 AND 2003 (UNAUDITED)
NOTE 1. DESCRIPTION OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES
Epixtar Corp. (the "Company") was incorporated in Florida in June 1994.
The Company, previously known as Global Asset Holdings ("Global"),
changed its name on November 25, 2002. The Company was originally known
as Pasta Bella, Inc. and changed to Global in 1997. The Company was
originally formed to acquire other entities or businesses.
On November 14, 2000, the Company acquired an 80% interest in
SavOnCalling.com, LLC ("Savon") held by Transvoice Investment, Ltd.
("Transvoice"). Transvoice's original interest of 51% ownership in
Savon increased to 80% on November 14, 2000, pursuant to an acquisition
agreement dated May 1, 2000 between Transvoice and Teltran
International, Inc. ("Teltran"). Savon was engaged in the marketing and
resale of domestic and international telecommunications services.
During the year 2001, Savon discontinued its business operations. On
August 28, 2002, Savon filed for reorganization under Chapter 11 of the
federal bankruptcy code. Teltran held a minority interest of 20% in
Savon, until its remaining interest was transferred to the Company as
part of the bankruptcy settlement during 2003.
On March 31, 2001, the Company acquired all of the outstanding shares
of National Online Services, Inc. ("NOL"). Transvoice and a non-related
party owned 80% and 20% of the outstanding shares respectively. NOL was
incorporated in February 2001 as a provider of subscription based
"yellow pages" internet directory services. In July 2003, NOL was
merged into a newly formed subsidiary incorporated in Delaware under
the same name and continued to provide the same services.
On June 1, 2001, the Company formed a wholly owned subsidiary,
incorporated in Florida; One World Public Communications, Corp. ("One
world"). One World was formed to provide low-rate pay phone service for
international calls. In September 2003, the Company formed a new wholly
owned subsidiary of the same name, incorporated in Delaware. In January
2004, the Florida Corporation was merged into the surviving Delaware
corporation of the same name and purpose.
In December 2001, the Company formed two additional subsidiaries;
Merchant Internet Services Corp. ("Merchant") and Liberty On-Line
Services, Inc. ("Liberty"), formerly Bell America Communications, Corp.
Merchant was formed to provide customer care service to customers of
NOL. Merchant changed its name to Epixtar Account Services, Inc.
("EAS") in June 2003. Liberty was formed to offer small business
solutions such as internet access, web-site design and hosting, and
telecommunication services to customers obtained by using direct
customer contact ("telemarketing"). In July 2003, EAS and Liberty were
merged into two newly formed subsidiaries incorporated in Delaware
under the same names and continue to provide the same services and
perform the same functions.
F-7
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 1. DESCRIPTION OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (Continued)
Additionally, during 2002, the Company formed seven additional wholly
owned subsidiaries incorporated in Florida. These subsidiaries provide
various internet, telecommunication, and telemarketing services as well
as internal management functions. In July 2003, these subsidiaries,
were merged into newly formed subsidiaries incorporated in Delaware
under the same names and continue to provide the same services and
perform the same functions.
In August 2002, the Company formed a wholly owned subsidiary,
incorporated in Florida, Epixtar Prepaid Communications Corp.
("Prepaid") for the purpose of selling prepaid telephone services. In
August 2003, Prepaid was merged into a newly formed subsidiary
incorporated in Delaware under the same name and continues to provide
the same services and perform the same functions.
In October 2003, Prepaid acquired the assets and certain liabilities of
Phoneboy Prepaid, Inc., a Florida Corporation, for $10,000 cash and
15,652 restricted shares of the common stock of the Company valued at
$90,000. Phoneboy Prepaid, Inc. sold prepaid phonecards through retail
outlets throughout the United States. The purchase price was allocated
to the fair value of the net assets acquired with the excess of $34,330
assigned to identifiable intangibles (non-compete agreement). The
operations of Prepaid are included in the accompanying consolidated
financial statements from the date of acquisition. In May 2004, the
operations of Prepaid were sold. The Company does not consider the
acquisition, the operations or the sale to be significant or material.
In February 2003, the Company formed a wholly owned subsidiary,
incorporated in Florida, Epixtar Marketing Services Corp. ("Marketing")
for the purpose of providing marketing services for its in-house call
centers. In August 2003, Marketing was merged into a newly formed
subsidiary incorporated in Delaware under the same name and continues
to provide the same services and perform the same functions.
In June 2003, the Company formed a wholly owned subsidiary, Epixtar
Group, Inc. ("Group"). Group was formed to own the Company's four
wholly owned internet service providers and EAS. In August 2003, Group
was merged into a newly formed subsidiary incorporated in Delaware
under the same name and continues to provide the same services and
perform the same functions. In January 2004, Group changed its name to
NOL Group, Inc.
On July 24, 2003, the Company formed a wholly owned subsidiary, Epixtar
Philippines IT-Enabled Services Corporation, incorporated in the
Philippines. The Company was formed to engage in the business of
operating contact centers for the purpose of fielding and managing
incoming calls related to customer services, and making and managing
outgoing calls for sales, customer service, direct response, back
office support, and other similar functions (see Note 19).
In 2003, the Company operated primarily in one segment - business
solutions which are internet based. In 2004, the Company intends to
begin material operations in a second segment - contact center
outsourcing services.
F-8
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 1. DESCRIPTION OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (Continued)
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of
Epixtar Corp. (formerly Global Asset Holdings, Inc.), and its
wholly-owned subsidiaries; SavOnCalling.com, LLC; NOL Group, Inc.;
National Online Services, Inc.; One World Public Communications,
Corp.; Epixtar Account Services Corp. (formerly Merchant Internet
Services, Inc.); Liberty On-Line Services, Inc.; Ameripages, Inc.
(formerly Amerilinc, Inc.); Epixtar Communications Corp.; Epixtar
Financial Corp.; Epixtar Management Corp.; Epixtar Solutions, Corp.;
Epixtar Prepaid Communications Corporation, Inc.; Epixtar
Philippines IT-Enabled Services Corporation; Epixtar Marketing
Services Corp.; Epixtar BPO Services Corporation; Epixtar
International Contact Center Ltd.; Epixtar Information Technology,
Private, Ltd.; Epixtar Direct Response, Corp.; Epixtar Direct Sales
Corp.; and B2B Advantage, Inc. (formerly SBA Online, Inc.). All
significant intercompany accounts and transactions have been
eliminated.
REVENUE RECOGNITION
National Online Services, Inc., Liberty On-line Services, Inc., B2B
Advantage, Inc., and Ameripages, Inc. are providers of subscription
based "yellow pages" internet directory services. The Company,
through these subsidiaries, provides small businesses with internet
access, websites, and e-mail addresses through the resale of dial-up
technology. Customers are obtained utilizing outside professional
telemarketing call centers and in-house telemarketers. Each sale is
evidenced by a recorded acceptance, which is reviewed by a third
party quality control provider before the company processes an
order. Each customer is entitled to a free thirty-day trial period,
during which the customer can cancel the service at no charge. The
customers are billed monthly, a predetermined fixed amount, for one
month in advance. Revenue is recognized during the period in which
services are provided and revenue is deferred for the portion of the
advance billings that is attributed to the following accounting
period. The amount of deferred revenue is determined by multiplying
the advance billing amounts by the percentage of days during the
preceding thirty-day service period that occur during the subsequent
accounting period. All billing and collecting is done by third party
billing services. Collections are remitted on a weekly or monthly
basis for billings that occurred approximately sixty to ninety days
prior.
One World Public Communications Corp. provides low rate long
distance international pay phone service. Its revenues in 2003 and
2002 have been minimal. The pay phone operators are billed monthly,
based upon actual usage at each pay phone. When a call is initiated,
revenues are earned. Revenue is based upon contracts with the pay
phone operator at stated rates.
Revenues derived from the operations of Phoneboy Prepaid, Inc.,
which was acquired in October 2003 and disposed of in May 2004, were
immaterial to total consolidated revenues.
Revenues from contact center operations are recognized as earned,
when the services are provided.
F-9
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 1. DESCRIPTION OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (Continued)
USE OF ESTIMATES
The preparation of the consolidated financial statements in
conformity with accounting principles generally accepted in the
United States requires management to make estimates and assumptions
that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those
estimates.
UNAUDITED FINANCIAL INFORMATION
The accompanying financial statements as of March 31, 2004 and for
the three months ended March 31, 2004 and 2003 are unaudited.
However, in the opinion of management, such financial statements
contain all adjustments, consisting only of normal recurring
adjustments, necessary for a fair presentation of financial
position, results of operations and cash flows for such periods.
Results of interim periods are not necessarily indicative of results
to be expected for an entire year.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost. Depreciation is
computed principally using the straight-line method for financial
reporting purposes and using accelerated methods for income tax
purposes. Estimated useful lives for financial reporting purposes
range from five to seven years. Expenditures which significantly
increase value or extend useful asset lives are capitalized.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with a maturity
of three months or less when purchased to be cash equivalents.
ADVERTISING EXPENSE
The cost of advertising is expensed as incurred. The Company
incurred advertising costs of $15,518 (unaudited) and $0 (unaudited)
for the quarters ended March 31, 2004 and 2003, respectively. The
Company incurred $70,686, $4,744 and $19,419 in advertising costs
during 2003, 2002 and 2001, respectively.
FAIR VALUE OF FINANCIAL INSTRUMENTS
Statement of Financial Accounting Standards ("SFAS") No. 107,
"Disclosures About Fair Value of Financial Instruments", requires
disclosure of the fair value information, whether or not recognized
in the balance sheet, where it is practicable to estimate that
value. The amounts reported for cash, accounts receivable, prepaid
expenses, loans payable, accounts payable and accrued expenses
approximate their fair value because of their short maturities. The
amount of the note payable - stockholder has been presented at its
estimated fair value (see Note 9).
F-10
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 1. DESCRIPTION OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (Continued)
CONCENTRATION OF CREDIT RISK
Financial instruments that potentially subject the Company to
significant concentrations of credit risk consist primarily of cash
and cash equivalents and accounts receivable. The Company's
investment policy is to invest in low risk, highly liquid
investments. At various times during the year, the Company had cash
balances in excess of federally insured limits. The Company
maintains its cash balances with high quality financial
institutions, which management believes reduces such risk. The
Company utilizes the services of outside third-party billing houses.
Since the Company's receivables collected by clearing agents are not
segregated, there is a concentration risk and possible loss upon the
bankruptcy or defalcation of any clearing agent. There is no
substantial dependency on any billing house as they are utilized for
better cash flow management and compliance issues.
Historically, the Company has depended on third-party vendors for
its telemarketing and fulfillment operations. Substantially, all of
the Company's telemarketing vendors operated their facilities
outside the United States. As of December 31, 2003, no third-party
telemarketers were being utilized and the Company plans to perform
these functions internally for the foreseeable future.
STOCK-BASED COMPENSATION
The Company has elected to follow Accounting Principles Board
Opinion No. 25, "Accounting for Stock Issued to Employees" (APB No.
25), and related interpretations, in accounting for its employee and
board of director stock options rather than the alternative fair
value accounting allowed by SFAS No. 123, "Accounting for
Stock-Based Compensation". APB No. 25 provides that the compensation
expense relative to the Company's employee stock options is measured
based on the intrinsic value of the stock option.
SFAS No. 123 requires companies that continue to follow APB No. 25
to provide a pro-forma disclosure of the impact of applying the fair
value method of SFAS No. 123. The Company follows SFAS No. 123 in
accounting for stock options issued to non-employees (see Note 18).
EARNINGS (LOSS) PER SHARE
The Company has adopted SFAS Statement No. 128, "Earnings per
Share". The statement establishes standards for computing and
presenting earnings per share (EPS). It requires dual presentation
of basic and diluted EPS on the face of the income statement. There
is no presentation of diluted loss per share in 2002 as the effect
of common stock options, warrants and convertible debt amounts were
antidilutive. Note 18 discusses the computation of earnings (loss)
per common share. Notes 6 discusses the issuance of warrants issued
as consideration for debt restructuring, compensation for consulting
services, in connection with the issuance of preferred stock, and in
relation to the issuance of convertible debt. Note 11 discusses
options issued through the Company's incentive stock option plan.
F-11
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 1. DESCRIPTION OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (Continued)
GOODWILL
Goodwill represents the excess acquisition cost over the fair value
of the tangible and identified intangible net assets of the NOL
acquisition in 2001. Goodwill was being amortized over an estimated
useful life of five years. In accordance with SFAS No. 142 "Goodwill
and Other Intangible Assets", the Company no longer amortizes
goodwill, but reviews goodwill for impairment.
SFAS No. 142 requires the Company to compare the fair value of
goodwill to the carrying amount and determine if impairment
occurred. Impairment occurs when the fair value of the goodwill is
lower than the carrying value. For the year ended December 31, 2002,
fair value was determined by an outside valuation based on
discounted cash flows, market multiples or appraisal value as
appropriate. For the year ended December 31, 2003, the Company
determined the fair value by applying the valuation methods utilized
for the year ended December 31, 2002. For the years ended December
31, 2003 and 2002, there was no impairment.
INTANGIBLE ASSETS
The Company's intangible assets consist of a non-competition
agreement entered into as part of the acquisition of Phoneboy
Prepaid, Inc. (see above). The non-competition agreement is stated
on the basis of cost and is amortized on a straight-line basis over
two years (see Note 7). There were no intangibles with indefinite
lives as of December 31, 2003 or 2002. Intangible assets are
included in "Deposits and Other" in the accompanying consolidated
financial statements.
INCOME TAXES
The Company accounts for income taxes under SFAS No. 109,
"Accounting for Income Taxes". SFAS No. 109 requires an asset and
liability approach for financial reporting for income taxes. Under
SFAS No. 109, deferred taxes are provided for temporary differences
between the carrying values of assets and liabilities for financial
reporting and tax purposes at the enacted rates at which these
differences are expected to reverse.
DISCONTINUED OPERATIONS
In March 2001, the Company discontinued the operations of Savon. In
2002, Savon had no operations, sales or other significant
transactions.
F-12
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 1. DESCRIPTION OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (Continued)
BUSINESS SEGMENTS
SFAS No. 131, "Disclosures About Segments of an Enterprise and
Related Information", establishes standards for the way that public
companies report information about operating segments in annual
financial statements and requires reporting of selected information
about operating segments in interim financial statements regarding
products and services, geographic areas, and major customers. SFAS
No. 131 defines operating segments as components of a company about
which separate financial information is available that is evaluated
regularly by the chief operating decision maker in deciding how to
allocate resources and in assessing performance. The acquisition of
Phoneboy Prepaid, Inc. (see above) does not meet the criteria of a
reportable segment under SFAS 131 and, therefore, the Company
determined that it operated in only one segment until first quarter
2004 at which time it began contact center operations.
RECENT ACCOUNTING PRONOUNCEMENTS
In 2002, the Company adopted the disclosure provisions of SFAS No.
148, "Accounting for Stock-Based Compensation - Transition and
Disclosure (an amendment to FASB Statement No. 123)." SFAS No. 148
amends the disclosure requirements of SFAS No. 123 to require
prominent disclosures in both annual and interim financial
statements about the method of accounting for stock-based employee
compensation and the effect of the method used on reported results.
In January 2003, the FASB issued FASB Interpretation No. 46,
"Consolidation of Variable Interest Entities, an Interpretation of
Accounting Research Bulletin No. 51." In December 2003, the FASB
issued FIN No. 46R, which clarified certain issues identified in FIN
46. FIN 46R requires an entity to consolidate a variable interest
entity if it is designated as the primary beneficiary of that entity
even if the entity does not have a majority of voting interests. A
variable interest entity is generally defined as an entity where its
equity is unable to finance its activities or where the owners of
the entity lack the risk and rewards of ownership. The provisions of
this statement apply at inception for any entity created after
January 31, 2003. For an entity created before February 1, 2003, the
provisions of this interpretation must be applied at the beginning
of the first interim or annual period beginning after March 1, 2004.
The Company does not have any interest in variable interest entities
and therefore the adoption of this standard is not expected to have
an impact on the Company's financial position and results of
operations.
In April 2003, the Financial Accounting Standards Board ("FASB")
issued SFAS No. 149, "Amendment of Statement 133 on Derivative
Instruments and Hedging Activities." SFAS No. 149 amends and
clarifies the accounting for derivative instruments, including
certain derivative instruments embedded in other contracts, and for
hedging activities under SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities." SFAS No. 149 is generally
effective for contracts entered into or modified after June 30, 2003
and for hedging relationships designated after June 30, 2003. The
adoption of SFAS No. 149 did not have any impact on the Company's
financial position, results of operations or cash flows.
F-13
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 1. DESCRIPTION OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (Continued)
RECENT ACCOUNTING PRONOUNCEMENTS (Continued)
In May 2003, the FASB issued SFAS No. 150, "Accounting for Certain
Financial Instruments with Characteristics of Both Liabilities and
Equity." SFAS No. 150 requires that certain financial instruments,
which under previous guidance were recorded as equity, be recorded
as liabilities. The financial instruments affected include
mandatorily redeemable stock, certain financial instruments that
require or may require the issuer to buy back some of its shares in
exchange for cash or other assets, and certain obligations that can
be settled with shares of stock. The Company adopted SFAS No. 150 on
June 1, 2003. The adoption of this statement did not have any effect
on the Company's financial position, results of operations or cash
flows.
In November 2002, the Financial Accounting Standards Board issued
Interpretation No. 45, "Guarantor's Accounting and Disclosure
Requirements for Guarantees, Including Indirect Guarantees of
Indebtedness of Others," an interpretation of SFAS No. 5, 57, and
107 and rescission of SFAS Interpretation No. 34. This statement
addresses the disclosures to be made by a guarantor in its interim
and annual financial statements about its obligations under
guarantees. This interpretation also clarifies the requirements
related to the recognition of a liability by a guarantor at the
inception of a guarantee for the obligations the guarantor has
undertaken in issuing that guarantee. The adoption of this statement
did not have a significant impact on the Company's financial
position or results of operations.
NOTE 2. RESTATEMENT OF PRIOR CONSOLIDATED FINANCIAL STATEMENTS
The prior consolidated financial statements of the Company have been
restated as a result of management re-evaluating the accounting
treatment of three previously recorded transactions. Those transactions
are as follows:
SAVON LLC ACQUISITION
In November 2000, the Company exchanged 2,000,000 shares of Company
common stock for 80% of the outstanding member interests of Savon
LLC. Transvoice Investments Ltd., the seller, received 33% of the
outstanding common stock of the Company through this acquisition.
Pursuant to SEC Staff Accounting Bulletin No. 48, this acquisition
should have been recorded at historical cost of Savon because of the
significance of the ownership interest that the Transvoice
stockholder interests had following this acquisition. However, the
Company recorded the transaction at the fair value of the Company
common stock exchanged for the interest and, as a result, goodwill
was recorded in connection with this acquisition which should not
have been recorded. The Company has restated the prior consolidated
financial statements to record this acquisition at historical cost
of Savon at the date of purchase and, consequently, removed all
goodwill, goodwill amortization and impairment charges previously
recorded relating to this transaction.
F-14
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 2. RESTATEMENT OF PRIOR CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NATIONAL ON LINE ACQUISITION
On March 31, 2001, the Company acquired 100% of the outstanding
equity interests of National On Line, in a transaction involving
two payments, for a total of 4,500,000 shares of Company common
stock. Due to the fact that Transvoice Investments Ltd. owned 80%
of National On Line prior to the acquisition and 56% of the
outstanding Company common stock following the acquisition, the
purchase of the 80% interest should have been recorded at
historical cost of National On Line, pursuant to the guidelines of
SEC Staff Accounting Bulletin No. 48. Rather than record the 20%
interest at fair value and the 80% interest at historical cost, the
Company recorded the entire acquisition at the fair value of the
4,500,000 shares of Company common stock exchanged. As a result,
goodwill was recorded in connection with the purchase of the 80%
which should not have been recorded. The Company has restated the
prior consolidated financial statements to reflect the acquisition
of the 80% interest at historical cost of National On Line at the
date of purchase and, consequently, removed the goodwill and
goodwill amortization related thereto.
LOSS ON EXTINGUISHMENT OF DEBT
On October 31, 2001, the Company entered into a loan agreement to
borrow up to $5,000,000 from a then unrelated entity. The note
provided for interest at 7%, was collateralized by accounts
receivable and was due on demand. In August and September 2002, the
creditor became a stockholder of the Company when the entity
acquired a total of 770,000 common shares. In November 2002, the
Company entered into an agreement, which was executed on December
6, 2002 and amended on March 3, 2003, whereby the creditor released
the collateral and agreed not to demand payment before January 2005
in exchange for certain consideration. That consideration consisted
of warrants to purchase 4,000,000 shares of Company common stock at
an exercise price of $.50 per share for a term of three years
beginning in May 2003. Pursuant to EITF 96-19, management has
determined that the transaction should have been treated as an
extinguishment of the original instrument and an execution of a new
note at December 6, 2002. The fair value of the warrants,
determined on the grant date (March 3, 2003), should have been
treated as a component of the calculation of the loss associated
with that extinguishment and should have been recognized in the
statement of operations in December 2002. In addition, the new note
should have been recorded at fair value on the date that it was
entered into (December 6, 2002).
In 2002, the Company recorded the fair value of the warrants at the
date the agreement was negotiated (November 2002) as deferred
financing costs and began amortizing those costs over the new life
of the loan (two years). The 2002 consolidated financial statements
have been restated to reflect the loss on debt extinguishment in
2002, measured by the fair value of the warrants on the date of
grant, reduced by the discount on the note required to reflect that
note at fair value at the date it was executed. The discount is
being amortized over the life of the new note, approximately two
years. The fair value of both the warrants and the note payable was
determined by appraisal.
F-15
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 2. RESTATEMENT OF PRIOR CONSOLIDATED FINANCIAL STATEMENTS (Continued)
SUMMARY
As a result of the transactions described above, the previously
reported net loss for the year ended December 31, 2002 has
increased by approximately $9,509,000 to approximately $11,955,000.
Net loss per share as previously reported for 2002 ($.23) was
restated to a net loss per share of $(1.13). In addition,
stockholders' equity as of December 31, 2002 of approximately
$12,043,000 as previously reported was reduced to a stockholders'
deficiency of approximately $2,147,000.
The previously reported net loss for the year ended December 31,
2001 has decreased by approximately $13,534,000 to approximately
$2,985,000. Net loss per share for 2001 as previously reported
($2.13) was restated to net loss per share of $(0.39). In addition,
stockholders' equity as of December 31, 2001 of approximately
$13,489,000 has been reduced to approximately $47,400.
The restated balance sheet as of December 31, 2002 is as follows:
[Enlarge/Download Table]
As Previously
Reported Adjustments Restated
-------- ----------- --------
ASSETS
Debt restructuring costs - current portion $ 500,000 $ (500,000) $ --
Other current assets 4,739,186 4,739,186
Property and equipment, net 406,971 -- 406,971
Debt restructuring costs - non-current portion 458,333 (458,333) --
Goodwill 16,801,359 (13,441,087) 3,360,272
Other Assets 76,716 -- 76,716
----------- ------------ ------------
Total assets $22,982,565 $(14,399,420) $ 8,583,145
=========== ============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities $ 8,377,478 $ -- $ 8,377,478
----------- ------------ ------------
Long-Term Debt:
Capital lease obligation 88,451 -- 88,451
Note payable 2,474,000 (209,300) 2,264,700
----------- ------------ ------------
Total long-term debt 2,562,451 (209,300) 2,353,151
----------- ------------ ------------
Stockholders' Equity (Deficiency):
Common stock 10,503 -- 10,503
Additional paid-in capital 31,757,997 (18,366,124) 13,391,873
Accumulated deficit (19,725,864) 4,176,004 (15,549,860)
---------- ------------ ------------
Total stockholders' equity (deficiency) 12,042,636 (14,190,120) (2,147,484)
---------- ------------ ------------
Total liabilities and stockholders'
equity (deficiency) $22,982,565 $(14,399,420) $ 8,583,145
=========== ============ ============
F-16
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 2. RESTATEMENT OF CONSOLIDATED FINANCIAL STATEMENTS (Continued)
SUMMARY (Continued)
The restated statement of operations for the year ended December
31, 2002 is as follows:
[Enlarge/Download Table]
As Previously
Reported Adjustments Restated
-------- ----------- --------
Revenues $26,250,851 $ -- $ 26,250,851
Cost of sales 17,781,967 -- 17,781,967
---------- ------------ -----------
Gross profit 8,468,884 8,468,884
Selling, general and administrative 10,332,086 -- 10,332,086
----------- ------------ ------------
Loss from operations (1,863,202) -- (1,863,202)
Other (expense):
Interest expense (539,369) 41,667 (497,702)
Loss on debt extinguishment -- (9,550,700) (9,550,700)
----------- ------------ ------------
Loss from continuing operations (2,402,571) (9,509,033) (11,911,604)
Loss from discontinued operations (43,318) - (43,318)
----------- ------------ ------------
Net Loss $(2,445,889) $ (9,509,033) $(11,954,922)
=========== ============ ============
Net Loss Per Common Share
Basic and Diluted:
Continuing operations $ (0.23) $ (0.91) $ (1.13)
Discontinued operations (0.00) (0.00) (0.00)
----------- ------------ ------------
Net loss (0.23) (0.91) (1.13)
=========== ============ ============
Weighted Average Number of Common
Shares Outstanding 10,503,000 -- 10,503,000
=========== ============ ============
The restated balance sheet as of December 31, 2001 is as follows:
As Previously
Reported Adjustments Restated
-------- ----------- --------
ASSETS
Total current assets $ 842,560 $ -- $ 842,560
Property and equipment, net 201,466 -- 201,466
Goodwill 16,801,359 (13,441,087) 3,360,272
Other Assets 33,996 -- 33,996
----------- ------------ ------------
Total assets $17,879,381 $(13,441,087) $ 4,438,294
=========== ============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities $ 4,338,130 $ -- $ 4,338,130
----------- ------------ ------------
Total Long-Term Debt 52,726 -- 52,726
----------- ------------ ------------
Stockholders' Equity
Common stock 10,503 -- 10,503
Additional paid-in capital 30,757,997 (27,126,124) 3,631,873
Accumulated deficit (17,279,975) 13,685,037 (3,594,938)
----------- ------------ ------------
Total stockholders' equity 13,488,525 (13,441,087) 47,438
----------- ------------ ------------
Total liabilities and stockholders'
equity $17,879,381 $(13,441,087) $ 4,438,294
=========== ============ ============
F-17
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 2. RESTATEMENT OF CONSOLIDATED FINANCIAL STATEMENTS (Continued)
SUMMARY (Continued)
The restated statement of operations for the year ended December
31, 2001 is as follows:
[Enlarge/Download Table]
As Previously
Reported Adjustments Restated
-------- ----------- --------
Revenues $ 1,189,723 $ -- $ 1,189,723
Cost of sales 1,684,615 -- 1,684,615
------------ ------------ ------------
Gross profit (loss) (494,892) -- (494,892)
Selling, general and administrative 2,298,048 -- 2,298,048
------------ ------------ ------------
Loss from operations (2,792,940) -- (2,792,940)
------------ ------------ ------------
Other (expense):
Interest expense 90,597 -- 90,597
Loss on debt extinguishment 6,817 -- 6,817
Amortization of purchased intangibles 1,950,241 (1,588,807) 361,434
------------ ------------ ------------
(2,047,655) (1,588,807) (458,848)
------------ ------------ ------------
Loss from continuing operations (4,840,595) 1,588,807 (3,251,788)
Income (loss) from discontinued operations (11,678,492) 11,945,682 267,190
------------ ------------ ------------
Net Loss $(16,519,087) $ 13,534,489 $ (2,984,598)
============ ============ ============
Net Loss Per Common Share
Basic and Diluted:
Continuing operations $ (0.62) $ 0.20 $ (0.42)
Discontinued operations (1.51) $ 1.54 0.03
------------ ------------
Net loss $ (2.13) $ 1.74 $ (0.39)
============ ============ ============
Weighted Average Number of Common
Shares Outstanding 7,758,693 7,758,693
============ ============
NOTE 3. PROFITABILITY AND LIQUIDITY
At December 31, 2003, the Company reflected an accumulated deficit of
approximately $13,000,000 as a result of net losses in each year of
operation except 2003. In the first quarter of 2003 the Company began
to report profitable operations. However, cash flows from operations
for the year ended December 31, 2003 were negative. In the quarter
ended March 31, 2004, the Company reported a net loss of approximately
$860,000. The Company continues to experience certain liquidity issues.
In October 2003, the Federal Trade Commission ("FTC") served a
complaint in which the FTC alleged that the Company and certain
subsidiaries were misleading potential customers of the internet
service business. Specifically, the FTC alleged that the Company was
signing customers for a free thirty day trial period without
appropriate consent and was failing to inform those customers that
unless the service was cancelled before the end of the thirty day trial
period the customer would be billed for the service in future periods.
At the same time it served the complaint, the Court issued a temporary
restraining order, asset freeze, order permitting expedited discovery,
order appointing a temporary receiver and an order to show cause in an
action commenced by the FTC. In November 2003, without any finding of
wrongdoing, the Company agreed in principle to enter into a preliminary
injunction with the FTC. As a result, the Company was allowed to resume
business and the asset freeze was lifted. As part of the agreement, the
Company was required to establish an escrow account for the payment of
future customer refunds and other amounts subject to future resolution
of the dispute with the FTC, into which approximately $1,702,000 was
deposited. As of December 31, 2003, the amount held in escrow was
approximately $856,000. During 2003, the Company paid $75,000 in fees
and fines and received released funds of approximately $772,000 from
the escrow funds. In addition, the Company can not utilize
approximately $417,000 of cash held in Philippine and U.S. bank
accounts until they receive approval by the FTC. As a result, this cash
is reflected as restricted in the accompanying balance sheet. The
action by the FTC, and the Company's resulting defense against such
action, caused the Company to experience business interruption and
incur substantial costs. Commencing on October 30, 2003, the Company
was unable to market its internet product and has not yet returned to
marketing at a level equivalent to that before the injunction. All of
this has had a significant negative impact on the financial position
and results of operations of the Company which has not yet been fully
measured. Also, although the Company believes that it is operating
within the current laws and regulations, there can be no assurance that
there will be no further action by the FTC or any other governmental
agency in the future.
F-18
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 3. PROFITABILITY AND LIQUIDITY (Continued)
In part as a result of the actions of the FTC, the Company decided to
expedite the implementation of a business plan previously developed,
which involves moving into an additional business segment. The Company
intends to sell outsourcing services to customers through call centers
which the Company will own and/or operate. This business plan calls for
the Company to acquire or establish call center operations in foreign
countries. This business expansion will require substantial working
capital commitments on the part of the Company.
In addition, the Company currently operates an internet based business
which could be subject to technological obsolescence in the future.
While the Company intends to continue to operate the internet provider
service business, the Company also intends to expend significant
resources developing the previously described call center operations.
As a result, there may not be sufficient resources available to allow
the internet provider service business to maintain or increase its
customer base.
In order to maintain profitability, the Company needs to be able to
retain customers in the internet provider service segment as well as
develop customers in the call center segment. Management believes that
the steps it is taking to implement the new business plan will allow
the Company to maintain profitability. These steps include:
o hire additional management personnel with call center
experience
o enter into preliminary agreements to acquire call center
assets in the Philippines
o enter into a lease in Manila for space to be developed as a
call center
o enter into agreements for outsourcing services
o prepare a private placement offering for debt or equity
funding (see Note 22)
o renegotiate the maturity date of debt instrument (see Note 9)
F-19
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 3. PROFITABILITY AND LIQUIDITY (Continued)
Although management believes that the actions currently being taken
provide the opportunity for the Company to maintain profitability and
liquidity, there can be no assurances that management's plans will be
achieved.
NOTE 4. ACCOUNTS RECEIVABLE
[Download Table]
March 31, December 31,
2004 2003 2002
---- ---- ----
(Unaudited) (Restated)
Accounts receivable - gross $3,718,618 $3,424,963 $2,018,256
Holdbacks and reserves 6,262,317 5,733,290 4,285,564
Unbilled receivables 48,572 114,834 420,763
----------- ---------- ----------
10,029,507 9,273,087 6,724,583
Allowance for doubtful accounts (2,238,030) (2,178,035) (2,132,371)
Estimated settlement liabilities (1,902,021) (1,485,377) (789,886)
Due to factors and reserve (1,139,688) -- --
----------- ---------- ----------
Accounts receivable - net $ 4,749,768 $5,609,675 $3,802,326
=========== ========== ==========
The Company's accounts receivable include the determined collectible
portion of receivables based upon reconciliation with the outside
billing services and local exchange carriers (LEC). Additionally, as is
common business practice in the telecommunications industry, the
billing services remit collections reduced by a "holdback or reserve".
The holdback or reserve represents anticipated uncollectible billings,
disputed billings or adjustments to a customer's account and are
included in accounts receivable net of an allowance for collectibility.
While holdbacks and reserves are expected to be collected, the Company
has established an allowance of approximately fifty percent of such
amounts as of March 31, 2004 (unaudited) and December 31, 2003 and
2002. The Company writes off accounts considered uncollectible against
the allowance upon notification from the billing companies that amounts
are uncollectible. Additionally, based upon notification from the
billing companies, the Company recorded $1,485,377 and $789,886 at
December 31, 2003 and 2002, respectively, in anticipated adjustments
due the billing companies as future settlements. Unbilled receivables
represents amounts billed subsequently for services provided in the
current period. The Company's accounts receivables serve as collateral
for certain debt of the Company (see Note 8).
FACTORING AGREEMENTS
In April 2003, a subsidiary of the Company entered into a factoring
and security agreement with a non-related party. Under the terms of
the agreement, a maximum of $2,000,000 of accounts receivable can
be factored at a 50% advance rate for an initial discount fee of
1.25% of the purchased receivable. For accounts receivables
uncollected after 30 days, the Company is charged an additional
0.625% for every 15 day period up to 90 days. Thereafter, for the
next two 15-day periods, the Company is charged an additional
0.75%. Accounts receivable are also factored through a billing
company under similar terms with a maximum advance of $500,000. The
total amount of factored accounts receivable was $1,100,752 as of
December 31, 2003. Factoring charges during 2003 amounted to
$311,346. Accounts receivable are presented net of factored
amounts.
F-20
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 4. ACCOUNTS RECEIVABLE (Continued)
DEFERRED REVENUE
The Company's customers are billed on a thirty day cycle. Deferred
revenue represents the pro-rata portion of billings to customers
that have not been earned. Customers are billed monthly for one
month in advance. The amount of deferred revenue is determined by
multiplying the advance billing amounts by the percentage of days
during the preceding thirty-day service period that occur during
the subsequent accounting period.
NOTE 5. DEFERRED BILLING COSTS
The Company's billing costs consist of transaction charges from its
third party billing companies and LEC's. Billing costs are deducted by
the billing companies in advance by reducing amounts collected on the
Company's behalf before remitting the net amount. Since the Company
bills its customers one month in advance, a portion of the billing
costs deducted from remittances from the billing companies relate to
transaction charges for revenues that are deferred (see Note 11). The
amount of deferred billing costs is determined by multiplying the
advance billing amounts by the percentage of days during the preceding
thirty-day service period that occur during the subsequent accounting
period.
NOTE 6. PROPERTY AND EQUIPMENT
[Enlarge/Download Table]
Estimated March 31, December 31,
Useful Lives 2004 2003 2002
------------ ---- ---- ----
(Unaudited)
Equipment 5-7 years 1,515,070 $1,012,682 $353,284
Software 3 Years 200,000 200,000 --
Furniture and fixtures 7 years 347,550 241,193 141,434
Leasehold improvements 5 years 481,367 129,583 17,628
---------- ---------- --------
2,543,987 1,583,458 512,346
Less: accumulated depreciation
and amortization (420,481) (319,614) (105,375)
---------- ---------- --------
$2,123,506 $1,263,844 $406,971
========== ========== ========
Depreciation expense was $214,299 and $98,557 for the years ended
December 31, 2003 and 2002, respectively, and $100,867 (unaudited) for
the three months ended March 31, 2004.
F-21
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 7. INTANGIBLE ASSETS
[Download Table]
March 31, December 31,
2004 2003
---- ----
(Unaudited)
Balance of non-competition agreement:
Gross $39,237 $39,237
Accumulated amortization 9,814 4,907
------- --------
Net balance $29,426 $34,330
====== ======
The Company had no amortizable intangible assets at December 31, 2002.
Amortization expense for intangible assets was $4,907 for the year
ended December 31, 2003 and $4,907 (unaudited) for the three months
ended March 31, 2004.
Estimated amortization expense for the succeeding years ending December
31 is as follows:
[Download Table]
2004 $19,619
2005 14,711
NOTE 8. DEBT
[Enlarge/Download Table]
March 31, December 31,
2004 2003 2002
---- ---- ----
(Unaudited)
In July 2002, National Online Services, Inc. issued notes to
two telemarketing vendors in the amounts of $302,532 and
$101,934. The notes were payable in one year, bearing interest
at 10% per annum and were given in settlement of outstanding
accounts payable balances. The notes were satisfied with the
issuance of stock in 2003. $ -- $404,466
In October 2003, the Company acquired the assets and certain
liabilities of Phone Prepaid, Inc., which included a revolving
line of credit in the amount of $10,000 bearing annual
interest at 3.25% above prime. The prime rate was 4.00% on
December 31, 2003. The line of credit expires in
December 2005. 9,800 9,800 --
F-22
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 8. DEBT (Continued)
[Enlarge/Download Table]
March 31, December 31,
2004 2003 2002
---- ---- ----
(Unaudited)
In December 2003, the Company issued a convertible debenture
in the amount of $500,000 to unrelated parties. The debenture
accrues interest at 7% annually and matures in December 2004.
The outstanding principal and interest on the debenture is
convertible at any time into shares of the Company's common
stock. On the date of the issuance of the convertible
debenture, Company's common stock had a closing price per
share on the Over-the Counter Bulletin Board of $5.15. Based
on the terms of the conversion associated with the debenture,
there was an intrinsic value associated with the beneficial
conversion feature estimated at $326,619, which was recorded
as deferred interest and presented as a discount on the
convertible debenture, net of amortization to be taken over
the one-year term of the debenture. Also, as part of the
convertible debenture, the company issued detachable warrants
to purchase 62,500 shares of the Company's common stock for
$5.00 per share exercisable at any time over a five year
period from the date of issuance. Using the Black-Scholes
model the Company estimated the fair value of the warrants and
allocated $173,381 of the proceeds from the debenture to the
warrants which was recorded as deferred interest and presented
as a discount on the convertible debenture, net of
amortization to be taken over the one-year term of the
debenture. The note is collateralized by the Company's
accounts receivables. 166,667 41,666 --
The Company leases certain equipment under capitalized leases
with monthly payments ranging from $120 to $3,300 and interest
ranging from 7% to 14% annually. The leases expire in years
ranging from 2004 to 2006. Minimum future lease payments total
$151,706, consisting of $85,162 in 2004, $53,331 in 2005, and
$13,213 in 2006. $2,862 of the minimum future lease payments
represents interest. 148,408 93,650 167,771
--------- --------- ---------
324,875 145,116 572,237
Less current portion (274,844) 121,513 483,786
--------- --------- ---------
$ 50,031 $ 23,603 $ 88,451
========= ========= =========
F-23
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 8. DEBT
Annual maturities of long-term debt are as follows:
For the years ending December 31,
2004 $579,847
2005 17,828
2006 5,775
--------
Total payments due 603,450
Less unamortized discount (458,334)
--------
$145,116
========
NOTE 9. NOTE PAYABLE - STOCKHOLDER
On October 31, 2001, the Company entered into a loan agreement to
borrow up to $5,000,000 from a then unrelated entity. In August 2002,
the creditor became a stockholder of the Company. The note provided for
interest at 7%, was collateralized by accounts receivable and was due
on demand. In November 2002, the Company entered into an agreement,
which was executed on December 6, 2002 and amended on March 3, 2003,
whereby the creditor released the collateral and agreed not to demand
payment before January 2005 in exchange for certain consideration. That
consideration consisted of warrants to purchase 4,000,000 shares of
Company common stock at an exercise price of $.50 per share for a term
of three years beginning in May 2003. Pursuant to EITF 96-19,
management accounted for this transaction as an extinguishment of the
original instrument and an execution of a new note at December 6, 2002.
The fair value of the warrants was recorded as a component of the
calculation of the loss associated with that extinguishment. The new
note was recorded at fair value on the date that it was entered into
(December 6, 2002). The resulting discount on the note is being
amortized over the life of the new note, approximately two years. The
fair value of both the warrants and the note payable was determined by
appraisal.
As part of the agreement, the creditor also agreed to release its
security interest in the Company's accounts receivable to the extent
required to secure additional debt financing. Except for the demand
deferral and the release of the security interest, all other terms of
the note stayed in effect. The outstanding principal balance was
$2,369,350 and $2,264,700 as of December 31, 2003 and 2002,
respectively. Interest of $255,334 was paid in July 2003.
NOTE 10. ACCOUNTS PAYABLE - SUBJECT TO COMPROMISE
As discussed in Note 1, 2 and 17, the Company's subsidiary, Savon,
filed for bankruptcy protection under Chapter 11. At the time of
filing, Savon had $385,401 in liabilities of which $351,263 was due to
its telecommunications carrier and related to a lawsuit initiated by
the carrier. Pre-petition liabilities are required to be segregated
from post-petition liabilities. Upon completion of a plan of
reorganization as part of Chapter 11 or change in bankruptcy status,
liabilities subject to compromise are adjusted. During 2003, a
bankruptcy settlement was reached, resulting in a forgiveness of the
liabilities amounting to $324,966.
F-24
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 11. NON-CASH INVESTING AND FINANCING ACTIVITIES
During 2003, the Company issued warrants to purchase 329,140 shares of
common stock at an exercise price of $7.87 per share, exercisable over
five years, relating to the issuance of preferred stock (see Note 13).
Based upon the Black-Scholes option price calculation, the value of
each warrant was $6.63 and the transaction was valued at $2,183,157,
which was accounted for as offering costs, resulting in offsetting
charges to additional paid-in capital.
In August 2003, the Company entered into a consulting agreement,
providing for the issuance of 50,000 shares of common stock as
compensation for services valued at $175,000 as specified in the
agreement. The total amount was charged to expense during 2003. As of
December 31, 2003, these shares have not been issued and as a result,
are included in common stock to be issued in the accompanying balance
sheet.
In September 2003, the Company issued 127,117 shares of common stock in
settlement of debt and accrued interest totaling $404,506 and $40,406,
respectively. The shares were valued based upon the outstanding amounts
related to the loan and were accounted for as a reduction in debt and a
charge to accrued interest.
In October 2003, the Company issued 13,617 shares of common stock as
compensation for consulting services valued at $85,000. The shares were
valued based upon the value of services provided as provided for in the
agreement. The total amount was charged to expense during 2003.
In October 2003, the Company issued 15,652 shares of common stock as
consideration valued at $90,000 related to the acquisition of the net
assets of Phoneboy Prepaid, Inc. (see Note 1). The shares were valued
based upon the terms of the purchase agreement and recorded in
accordance with the allocation of the purchase price to the assets and
certain liabilities as specified in the purchase agreement with the
excess of the total purchase price over the net assets purchased
allocated to the non-compete agreement included in the purchase
agreement. The non-compete agreement is included in "Deposits and
other" in the "Other assets" section of the balance sheet. As of
December 31, 2003, these shares have not been issued and as a result,
are included in common stock to be issued in the accompanying balance
sheet.
In December 2003, the Company issued convertible debt, convertible into
shares of the Company's common stock at a conversion rate as defined.
Purchasers of the convertible debt also received warrants to purchase
62,500 shares of the Company's common stock at an exercise price of
$5.00 per share, exercisable over five years. The accounting treatment
of the beneficial conversion feature and the detachable warrants
resulted in $495,834 of discounts against the debt, net of amortization
of $41,666, which was charged to interest expense in 2003 (see Note 8).
F-25
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 12. INCOME TAXES
The components of the Company's provision (benefit) for income taxes
are as follows:
[Download Table]
March 31, December 31,
2004 2003 2003 2002 2001
---- ---- ---- ---- ----
(Unaudited) (Unaudited) (Restated) (Restated)
Current:
Federal $ -- $ 406,000 $ -- $ -- $ --
State -- 74,000 -- -- --
---------- ----------- ------------ ------------ -----------
-- 480,000 -- -- --
---------- ----------- ------------ ------------ -----------
Deferred:
Federal -- -- -- -- --
State -- -- -- -- --
---------- ----------- ------------ ------------ -----------
-- -- -- -- --
---------- ----------- ------------ ------------ -----------
$ -- $ 480,000 $ -- $ -- $ --
========== =========== ============ ============ ===========
A reconciliation of income tax computed at the statutory federal rate
to income tax expense (benefit) is as follows:
[Enlarge/Download Table]
March 31, December 31,
2004 2003 2003 2002 2001
---- ---- ---- ---- ----
(Unaudited) (Unaudited) (Restated) (Restated)
Tax provision at the
statutory rate of 35% $(300,844) $ 859,800 $ 1,532,600 $ (4,184,223) $(1,044,609)
State income taxes,
net of federal
income tax (19,396) 95,500 175,730 (443,194) (102,011)
Change in valuation
allowance 193,465 (476,500) (1,752,797) 4,638,135 1,017,498
Permanent items 126,775 1,200 44,467 11,093 129,122
Other -- -- -- (21,811) --
---------- ----------- ------------ ------------ -----------
$ -- $ 480,000 $ -- $ -- $ --
========== =========== ============ ============ ===========
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and deferred tax liabilities are
presented below.
[Download Table]
March 31, December 31,
2004 2003 2002
---- ---- ----
(Unaudited) (Restated)
-----------
Deferred tax assets:
Net operating loss carryforward $2,164,688 $1,548,735 $1,418,369
Deferred financings costs 1,337,480 1,783,307 3,566,613
Allowance for doubtful accounts 870,594 847,256 829,492
---------- --------- ---------
Total gross deferred tax assets 4,372,762 4,179,298 5,814,474
Less valuation allowance (4,255,142) (4,061,678) (5,814,474)
--------- --------- ---------
Total net deferred tax assets 117,620 117,620 -
F-26
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 12. INCOME TAXES (Continued)
[Download Table]
March 31, December 31,
2004 2003 2002
---- ---- ----
(Unaudited) (Restated)
Deferred tax liabilities:
Depreciation on fixed assets (117,620) ( 117,620) --
----------- --------- ----------
Net deferred tax asset $ -- $ -- $ --
=========== ========== ==========
Because of the historical earnings history of the Company, the net
deferred tax assets have been fully offset by a 100% valuation
allowance. The valuation allowance for the net deferred tax assets was
approximately $4.1 million and $5.8 million as of December 31, 2003 and
2002, respectively.
In assessing the realizability of deferred tax assets, management
considers whether it is more likely than not that some portion or all
of the deferred tax assets will not be realized. The ultimate
realization of deferred tax assets is dependent upon the generation of
future taxable income during the periods in which those temporary
differences become deductible. Management considers the scheduled
reversal of deferred tax liabilities, projected future taxable income
and tax planning strategies in making this assessment.
At December 31, 2003 and 2002, the Company had net operating loss
carryforwards available for US tax purposes of approximately $3.9
million and $3.6 million respectively. These carryforwards expire
through 2023.
Under Section 382 of the Internal Revenue Code of 1986, as amended (the
"Code"), the utilization of net operating loss carryforwards is limited
under the change in stock ownership rules of the Code. As a result of
ownership changes, which occurred in June 2002, the Company's operating
tax loss carryforwards are subject to these limitations. Future
ownership changes could also further limit the utilization of any net
operating loss carryforwards as of that date.
NOTE 13 CONVERTIBLE PREFERRED STOCK
During 2003, the Company issued 23,510 shares of Series A Convertible
Preferred Stock and warrants to 16 investors for aggregate
consideration of $2,351,000. Each share of Preferred Stock has a par
value of $.001 and is convertible into shares of the Company's common
stock at an initial conversion price of $3.50. However, the terms of
the sale stated that, should the Company's net income for the year
ended December 31, 2003 not exceed $5,000,000, the conversion price
would be adjusted to $2.00 per share. Accordingly, the conversion price
in effect as of December 31, 2003 was $2.00 per share. Additionally,
the conversion price will be adjusted based upon the company's net
income in 2004 to $2.00 if the net income is less than $10,000,000,
$3.00 if net income is between $10,000,000 and $12,500,001, and $3.50
if net income exceeds $12,500,000. The shares are to be automatically
converted, at the then effective conversion price, in the event of an
offering in which the Company's common shares are listed on the New
York or American Stock Exchange or quoted on NASDAQ, or any combination
thereof; the minimum gross proceeds from such offering is at least
$50,000,000; and the offering price of such offering is at least $10.00
per share. The shares are also subject to automatic conversion at the
election of the holders of a majority of the preferred shares. The
conversion price is also subject to anti-dilution adjustments as set
forth in the purchase agreement.
F-27
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 13. CONVERTIBLE PREFERRED STOCK (Continued)
Based on the terms of the conversion associated with the preferred
stock, there was an intrinsic value associated with the beneficial
conversion feature estimated at $1,884,375, which was recorded as a
dividend and therefore as a reduction of retained earnings.
Additionally, each purchaser of the Preferred stock received, for each
share of preferred stock purchased, one warrant to purchase 14 shares
of the company's common shares at an exercise price of $7.87 per share
over a five year period. Using the Black-Scholes model the Company
estimated the fair value of the warrants to be $1,749,845.
The Company engaged certain consultants in connection with the offering
of the preferred stock. The consultants were compensated with $214,000
in cash and the issuance of warrants to purchase 284,471 shares of the
Company's common shares at exercise prices ranging from $3.41 to $5.00
per share for a period of five years.
In the event of liquidation, the holders of the preferred shares are
entitled in preference over holders of common shares to be paid first
out of the assets of the corporation available for distribution to
holders of the Company's capital stock of all classes, an amount equal
to two (2) times the original purchase price paid for the preferred
stock, or $4,702,000.
The holders of the preferred stock are also entitled to receive
equally, share for share, as and when declared by the Board of
Directors of the Company, cumulative dividends at an annual rate of 8%
of the original issue price. Such dividends, if declared, are payable
annually on each anniversary date of original issuance. Cumulative
dividends earned as of December 31, 2003 were $188,080. No dividends
can be declared or paid to holders of common shares unless all
cumulative dividends are paid to preferred stockholders.
After one year from the date of issuance of the preferred stock, the
Company may, at its discretion, repurchase all, but not less than all,
of the preferred stock issued for a price of $200 per share plus 8%
cumulative dividends.
F-28
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 14. COMMON STOCK WARRANTS
A summary of warrants issued and outstanding in connection with
convertible debentures and equity transactions as discussed above is
presented below. Upon exercise, warrants are convertible into an equal
number of the Company's common stock. The warrants are exercisable
immediately.
[Download Table]
Weighted-
Average
2003 Exercise Price
---- --------------
Outstanding at beginning of year -- --
Granted 4,713,611 $1.36
Exercised -- --
Forfeited -- --
---------
Outstanding at end of year 4,713,611 1.36
=========
Warrants exercisable at year-end 4,713,611 1.36
=========
The following table summarizes information for warrants outstanding at
December 31, 2003:
[Download Table]
Warrants Outstanding
----------------------------------------------------
Range of Number Weighted-Average Weighted-
Exercise Outstanding Remaining Average
Prices at 12/31/03 in months Exercise Price
------------- ------------- ----------------- --------------
.50 4,000,000 29 $ .50
3.41 - 5.00 284,471 55 4.27
5.01 - 6.00 100,000 57 6.00
6.01 - 7.87 329,140 54 8.00
NOTE 15. RELATED PARTY TRANSACTIONS
The Company has entered into two agreements with Transvoice Investment,
Inc. ("Transvoice"), the managing member of Transvoice Investment LLC,
the Company's majority stockholder. The Chairman of the Board of the
Company is one of two stockholders of Transvoice.
In October 2001, the Company entered into an agreement with Transvoice,
whereby Transvoice had provided certain services related to the
development of the Company's internet service provider business. Under
the terms of the agreement, the Company is to pay Transvoice $150,000
per month plus $1.00 for each customer in excess of 100,000 customers
computed monthly, until such time that the Company is no longer
generating revenues from its internet service provider business. The
Company incurred expenses of $2,637,618, $2,111,438 and $625,000 during
2003, 2002 and 2001, respectively, for services under this agreement.
The Company incurred expenses of $450,000 (unaudited) and $790,835
(unaudited) during the three month periods ended March 31, 2004 and
2003.
F-29
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 15. RELATED PARTY TRANSACTIONS (Continued)
In April 2003, the Company entered into an agreement with Transvoice,
whereby Transvoice provides consulting services related to the
development of marketing and telemarketing aspects of the Company.
Transvoice is not compensated for its services but is reimbursed for
payments made to subcontractors performing services related to the
agreement. The Company incurred expenses under this agreement in the
amount of $1,050,000 during the year ended December 31, 2003. The
Company incurred expenses of $225,000 (unaudited) under this agreement
for the three months ended March 31, 2004.
NOTE 16. STOCK OPTION PLAN
Options granted under the 2001 incentive stock option plan are
exercisable at the market price at the date of grant and, subject to
termination of employment, expire five years from the date of grant,
are not transferable other than on death, and vest in three equal
annual installments commencing one year from the date of grant.
A summary of the Company's stock option plan is presented below:
[Enlarge/Download Table]
Three Months Ended Year Ended December 31,
March 31, 2004 ----------------------------------------------------------------
(Unaudited) 2003 2002 2001
Weighted Weighted Weighted Weighted
Average Average Average Average
Exercise Exercise Exercise Exercise
Shares Price Shares Price Shares Price Shares Price
------ ----- ------ ----- ------ ----- ------ -----
Outstanding at the
beginning of the period 4,709,667 $3.45 1,030,000 $2.50 1,050,000 $2.50
Granted at fair value 3,895,000 3.88 -- --
Forfeited (182,000) 4.17 20,000 2.50
Exercised (33,333) .42 -- --
--------- --------- --
Outstanding at the
end of the period 4,709,667 $3.45 1,030,000 $2.50
========= =========
Options exercisable
at the end of
the period 611,328 338,997
========= ========
Weighted average
fair value of
options granted $3.01 $2.46
The following table summarizes information for stock options
outstanding at December 31, 2003:
[Enlarge/Download Table]
Options Outstanding Options Exercisable
----------------------------------------------- ------------------------------
Range of Number Weighted-Average Weighted- Number Weighted-
Exercise Outstanding Remaining Average Exercisable Average
Prices at 12/31/03 in years Exercise Price at 12/31/03 Exercise Price
------ ----------- -------- -------------- ----------- --------------
0.00 - 0.42 66,667 2.83 .42 --
2.50 - 3.50 4,118,000 2.12 3.25 611,328 2.50
4.50 - 5.00 525,000 2.60 4.80 -- --
F-30
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 17. COMMITMENTS, CONTINGENCIES AND OTHER MATTERS
SAVON
During 2001, the Company's subsidiary (Savon) and the minority
interest owner of Savon were named as defendants in a lawsuit
instituted by Savon's wholesale telecommunications carrier. The
lawsuit alleged breach of contract as well as other related
theories and damages. Subsequent to the initiation of the lawsuit,
the plaintiff filed Chapter 11 under the federal bankruptcy code.
Savon had filed what it believed to be valid counterclaims, which
were stayed when the plaintiff filed Chapter 11. In August 2002,
Savon filed Chapter 11 to stay the plaintiff's possible judgment as
well as continuing legal fees it was incurring. During 2003, claims
subject to the lawsuit were settled as a result of the bankruptcy
reorganization, resulting in payment of $65,000 by the Company.
STATE PROCEEDINGS AND INQUIRIES
As previously discussed, the Company uses telemarketing services to
obtain customers. During the normal course of business, the Company
has received inquiries or complaints from regulatory agencies.
Despite its attempts to minimize complaints, certain states have
issued fines or temporary restraining orders. While the ultimate
outcome of these matters cannot be ascertained, the Company
believes that there will not be a material adverse effect on the
Company's financial position, results of operations or cash flows.
FEDERAL TRADE COMMISSION
During 2003, the Company was the subject of a proceeding by the
Federal Trade Commission ("FTC"). The FTC complaint brought in the
United States District Court for the Southern District of Florida
alleged that the Company was misleading potential customers of
their internet service businesses through the use of third party
telemarketers. Specifically, the FTC alleged that the Company was
signing up customers for free thirty day trial periods without
appropriate consent and failing to inform these customers that
unless the service is cancelled before the end of the thirty day
trial period, the customers would be billed through their local
phone companies. As part of the proceeding, the Company was subject
to a temporary restraining order, asset freeze, order permitting
expedited discovery, order appointing temporary receiver, and order
to show cause as part of the proceeding. In November 2003, without
any finding of wrongdoing, the Company entered into a preliminary
injunction with the FTC. As a result, the Company was allowed to
resume its business and the asset freeze was partially lifted. As
part of the agreement, the Company was required to establish an
escrow account for the payment of future customer refunds and
amounts subject to further resolution of the dispute with the FTC
into which $1,701,684 of collections were deposited. As of December
31, 2003, the total amount held in escrow was $ 855,502 and the
total amount of cash still restricted totaled $416,721. During
2003, $771,182 was returned to the Company and $75,000 was charged
to the Company as fees and fines.
F-31
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 17. COMMITMENTS, CONTINGENCIES AND OTHER MATTERS(Continued)
LEASES
The Company and its subsidiaries lease office space in Miami,
Florida under operating leases ending on September 30, 2006. Rent
expense related to these leases amounted to $232,850, $218,273 and
$61,970 for the years ended December 31, 2003, 2002 and 2001,
respectively, and $78,613 (unaudited) for the three months ended
March 31, 2004.
During 2003, a subsidiary of the Company leased corporate
residences and approximately 32,000 square feet of office space in
the Philippines under operating leases expiring in years ranging
from 2004 to 2013. Rent expense related these rentals amounted to
$63,235 for the year ended December 31, 2003 and $48,772
(unaudited) for the three months ended March 31, 2004.
Annual rental commitments for the years ending December 31 are as
follows:
2004 $434,000
2005 429,000
2006 446,000
2007 464,000
2008 255,000
Thereafter 378,000
----------
$2,406,000
==========
INVESTOR CLAIM
In 2004, the Company received notification from an investor in the
preferred stock private placement of a claim to rescind that
investment. Upon advice of legal counsel, the Company believes the
claim is without basis. The amount of the investment is $150,000.
NOTE 18. EARNINGS (LOSS) PER COMMON SHARE
The Company has adopted SFAS Statement No. 128, "Earnings per Share".
The statement establishes standards for computing and presenting
earnings per share (EPS). It requires dual presentation of basic and
diluted EPS on the face of the income statement. There is no
presentation of diluted loss per share in 2002 as the effects of stock
options, warrants and convertible debt amounts were antidilutive.
F-32
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 18. EARNINGS (LOSS) PER COMMON SHARE (Continued)
The following table sets for the reconciliation of the numerator and
denominator of the basic and diluted EPS computations:
[Enlarge/Download Table]
March 31, December 31,
2004 2003 2003 2002 2001
---- ---- ---- ---- ----
(Unaudited) (Unaudited) (Restated) (Restated)
Numerator:
Net income (loss) $ (859,554) $1,976,5540 $ 4,378,859 $(11,944,922) $(2,984,598)
Preferred stock dividends 47,019 -- (2,072,455) -- --
---------- ----------- ----------- ------------ -----------
Numerator for basic income
(loss) per share -
income (loss) available
to common stockholders (812,535) (1,976,550) 2,306,404 (11,944,922) (2,984,598)
Effect of dilutive securities:
Interest on convertible debt -- -- 43,670 -- --
----------- ------------ ------------ ------------ -----------
Numerator for diluted income
(loss) per share -
income available to
common stockholders after
assumed conversions $ 812,535 $ 1,976,550 $ 2,350,074 $(11,944,922) $(2,984,598)
=========== ============ ============ ============ ===========
Denominator:
Denominator for basic income
(loss) per share - weighted
average shares 10,671,969 10,503,000 10,554,450 10,503,000 7,758,693
Effect ofdilutive securities:
Stock options -- -- 2,829,304 -- --
Warrants -- -- 901,983 -- --
Convertible debt -- -- 167,918 -- --
----------- ------------ ------------ ------------ -----------
Dilutive potential common
shares:
Denominator for diluted
income (loss) per share --
adjusted weighted-average
shares and assumed conversion 10,671,939 12,167,359 14,453,655 10,503,000 7,758,693
========== ========== ========== ========== =========
Basic income (loss) per share $(0.08) $(0.19) $0.22 $(1.13) $(0.39)
==== ==== ==== ===== ====
Diluted income (loss) per share $(0.08) $ 0.16 $0.16 $(1.13) $(0.39)
==== ===== ==== ===== ====
F-33
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 18. EARNINGS (LOSS) PER COMMON SHARE (Continued)
Pro forma information regarding net income and earnings per share is
required by SFAS No. 123, "Accounting for Stock-Based Compensation,"
and has been determined as if the Company had accounted for its stock
options under the fair value method of that Statement. The fair value
for these options was estimated at the grant date using a Black-Scholes
option pricing model with the following weighted average assumptions
for 2003, 2002 and 2001, respectively: risk-free interest rates of
3.04%, 4.08% and 3.12%, dividend yields of 0%, 0% and 0%, volatility
factors of the expected market price of the Company's common stock of
214%, 209% and 65%; and a weighted average expected life of the options
of 5 years.
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options, which have no vesting
restrictions and are fully transferable. In addition, option valuation
models require the input of highly subjective assumptions including the
expected stock price volatility. Because the Company's employee stock
options have characteristics significantly different from those of
traded options, and because changes in the subjective input assumptions
can materially affect the fair value estimate, in management's opinion,
the existing models do not necessarily provide a reliable single
measure of the fair value of its employee stock options. For purposes
of pro forma disclosures, the estimated fair value of the options is
amortized to expense over the options' vesting period.
No stock-based employee compensation cost is reflected in net income
(loss), as all options granted under those plans had an exercise price
equal to the market value of the underlying common stock on the date of
the grant. The following table illustrates the effect on net income
(loss) and income (loss) per share if the Company had applied the fair
value recognition provisions of FASB Statement No. 123, Accounting for
Stock-Based Compensation, to stock-based employee compensation.
[Enlarge/Download Table]
Three Months
Ended Years Ended December 31,
March 31, 2004 2003 2002 2001
-------------- ---- ---- ----
(Unaudited) (Restated) (Restated)
Net income (loss) $(859,554) $ 4,379,160 $(11,944,922) $(2,984,598)
Deduct: total stock-
based compensation
expense determined
under fair value based
method for all awards,
net of related tax effects -- (2,512,383) (894,600) (459,540)
--------- ----------- ------------ ----------
Pro forma net income (loss) $(859,554) $ 1,866,322 $(12,839,522) (3,444,138)
========= =========== ============ ==========
Loss per share:
Basic:
As reported $(0.08) $0.22 $(1.13) $(0.39)
====== ===== ====== ======
Pro forma $(0.08) $0.18 $(1.22) $(0.44)
====== ===== ====== ======
Diluted:
As reported $(0.08) $0.16 $(1.13) $(0.39)
====== ===== ====== ======
Pro forma $(0.08) $0.13 $(1.22) $(0.44)
====== ===== ====== ======
F-34
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 19. PHILIPPINE OPERATIONS
In the fourth quarter of 2003, the Company began operating for its
benefit the activities of a call center located in the Philippines. In
accordance with the terms of an Asset Purchase Agreement (the
"Agreement") dated March 2, 2004, a subsidiary of the Company, Epixtar
Philippines IT-Enabled Services Corporation (EPISC), agreed to acquire
certain assets and assume certain liabilities of I-Call Global Services
Corporation (I-Call). The Agreement provides for a purchase price of
approximately $821,000 payable $55,000 upon execution of the Agreement;
$150,000 at closing subject to certain conditions as defined in the
Agreement, plus approximately 65,000 shares of the Epixtar Corp. as
defined in the Agreement; and a total of $196,000 at various times up
to sixty days after closing date. The closing for this acquisition took
place in May 2004.
The acquisition of I-Call is not considered by the Company to be a
significant acquisition.
NOTE 20. -BUSINESS SEGMENTS
The Company operates primarily in two segments - internet provider
services (ISP) and contact center operations. The majority of the
Company's revenue is derived from the ISP segment which provides small
businesses with internet access and other services.
Information concerning the revenues and operating income for the three
months ended March 31, 2004 and 2003 (unaudited) and the years ended
December 31, 2003, 2002 and 2001, and the identifiable assets for the
two segments in which the Company operates are shown in the following
tables:
[Enlarge/Download Table]
Three Months Ended
March 31, Years Ended December 31,
2004 2003 2003 2002 2001
---- ---- ---- ---- ----
(Unaudited) (Unaudited) (Restated) (Restated)
Operating revenues:
Internet provider
services $4,535,687 $12,313,776 $35,367,050 $ 26,079,789 $ 1,175,890
Contact centers 185,126 -- 682,064 -- --
Other revenues 155,334 52,999 355,689 171,062 13,833
---------- ------------ ------------ ------------ -----------
$4,876,147 $ 12,366,775 $ 36,404,803 $ 26,250,851 $ 1,189,723
========== ============ ============ ============ ===========
Income (loss) from
operations 227,755 2,547,831 5,896,070 (1,863,504) (1,166,947)
Contact centers (1,063,433) -- (1,089,312) -- --
Other (23,876) (91,280) (427,591) (10,038,100) (1,632,810)
----------- ------------ ----------- ----------- ----------
(859,554) 2,456,551 4,379,167 (11,901,604) (2,799,757)
=========== ============ =========== =========== ==========
Income from continuing
operations (859,554) 2,456,550 4,379,160 (11,901,604) (3,251,788)
Gain (Loss) from
discontinued operations -- -- -- (43,318) 267,190
Income taxes -- (480,000) -- -- --
------------ ------------ ----------- ------------ -----------
Net income (loss) $ (859,554) $ 1,976,550 $ 4,379,160 $(11,944,922) $(2,984,598)
============ ============ =========== ============ ===========
F-35
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 20. -BUSINESS SEGMENTS (Continued)
[Enlarge/Download Table]
Three Months Ended
March 31, Years Ended December 31,
2004 2003 2003 2002 2001
---- ---- ---- ---- ----
(Unaudited) (Unaudited) (Restated) (Restated)
Identifiable Assets:
Internet provider
services 4,998,649 5,051,380 7,288,991 5,045,550 1,043,947
Contact centers 2,695,047 -- 1,973,403 -- --
Corporate 4,056,259 3,749,673 3,720,400 3,537,595 3,394,350
---------- --------- ---------- --------- ---------
Consolidated totals 11,749,555 8,801,053 12,982,794 8,583,145 4,438,297
========== ========= ========== ========= =========
Capital Expenditures:
Internet provider
services 741 -- -- 261,643 70,154
Contact centers 888,884 -- 684,873 -- --
Corporate 71,445 77,384 386,238 42,417 32,803
---------- ----------- ---------- ---------- ---------
Total expenditures 961,070 77,384 1,071,111 304,060 102,957
========== =========== ========== ========== =========
Depreciation and
Amortization:
Internet provider
services 27,933 27,738 111,353 91,778 5,144
Contact centers 35,995 -- 31,097 -- --
Corporate 41,969 8,262 71,849 6,779 1,673
---------- ----------- ---------- ---------- ---------
Total depreciation and
amortization 105,898 36,000 214,299 98,557 6,817
========== =========== ========== ========== =========
Geographic Revenues:
United States 4,691,021 12,366,775 35,752,739 26,250,851 1,189,723
Philippines 185,126 -- 1,368,538 -- --
---------- ----------- ---------- ---------- ---------
4,876,147 12,366,775 37,121,277 26,250,851 1,189,723
========== =========== ========== ========== =========
Long-Lived Assets:
United States 3,980,926 3,767,243 4,345,947 3,767,243 3,561,740
Philippines 1,502,852 -- 278,169 -- --
F-36
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 21. QUARTERLY INFORMATION (UNAUDITED)
The following is a summary of the Company's unaudited quarterly results
of operations for the quarter in years ended December 31, 2003 and
2002.
[Enlarge/Download Table]
March 31 June 30, September 30, December 31,
2003 2003 2003 2003
---- ---- ---- ----
Revenues $12,366,775 $9,268,098 $8,557,326 $6,929,078
Income from operations 2,622,443 1,626,647 1,224,217 (877,719)
Net income (loss) 1,976,550 1,370,029 1,104,324 (71,743)
Net income (loss) per share -
basic 0.19 0.13 0.10 (0.01)
Net income (loss) per share -
diluted 0.16 0.10 0.08 (0.00)
Weighted average common
stock outstanding - basic 10,503,000 10,507,539 10,524,689 10,554,450
Weighted average common
stock outstanding - diluted 12,167,359 13,600,964 14,083,470 14,453,655
March 31 June 30, September 30, December 31,
2002 2002 2002 2002
---- ---- ---- ----
(Restated) (Restated) (Restated) (Restated)
Revenues 1,901,451 2,910,420 7,749,645 13,689,335
Income from operations (1,083,908) (2,255,458) (869,804) (2,355,967)
Net income (1,171,874) (2,359,376) (1,017,223) (7,396,449)
Net income per share - basic (0.11) (0.23) (0.10) (0.70)
Net income per share - diluted (0.11) (0.23) (0.10) (0.70)
Weighted average common
stock outstanding - basic 10,503,000 10,503,000 10,503,000 10,503,000
Weighted average common
stock outstanding - diluted 10,503,000 10,503,000 10,503,000 10,503,000
Quarterly operating results are not necessarily representative of
operations for a full year for various reasons.
NOTE 22. SUBSEQUENT EVENTS (UNAUDITED)
Epixtar Corp. (Epixtar Corp.) has received $7.5 million in new
financing through its placement agent, Maxim Group, LLC. Laurus Master
Fund, Ltd. ("Laurus Funds") provided $5 million of financing to Epixtar
pursuant to a secured convertible term note, of which $1,930,000 is to
be held in a restricted cash account under the sole control of Laurus
and may be released upon the fulfillment of certain conditions more
fully described in the agreements with Laurus.
The term note is convertible at a fixed conversion price of $2.96. In
connection with the issuance of the convertible term note, Epixtar also
issued to Laurus Funds seven year warrants to purchase up to 493,827
shares of Epixtar's common stock at prices ranging from $4.05 to $4.66.
F-37
EPIXTAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
NOTE 22. SUBSEQUENT EVENTS (UNAUDITED) (Continued)
The remaining $2.5 million was raised through the private sale of
convertible notes and common stock purchase warrants to accredited
investors. Notes in the principal amount of $1,000,000 or "Bridge
Notes" are convertible at a price of $2.37 per share and are secured.
The holders of the remaining $1.5 million of convertible notes have the
right to convert their notes into shares of the Company's common stock
at a price of $2.96 per share or receive the repayment of their
principal amount, plus interest. In addition, the holders of the notes
received five year warrants to purchase an aggregate of 136,073 shares
of the Company's common stock at initial exercise prices of between
$5.05 and $4.66. The Bridge Notes and related warrants are required to
be converted or exercised in certain circumstances.
Epixtar also issued placement agent warrants in connection with each of
the above transactions. We will thereby issue warrants to purchase an
aggregate of 254,316 shares of common stock of which warrants to
purchase approximately 67,564 shares will be deferred until the
restrictive cash account referred to above is released. The terms of
the placement agent warrants are varied ,as a portion of these warrants
were issued in connection with each transaction and the price and the
number of shares have been determined in connection with each such
transaction.
The exercise and conversion prices of all the above securities are
subject to price and other adjustment.
Each of the Notes contain restrictions on certain actions we may take,
including restrictions on dividends, stock repurchases, incurring
indebtedness, creating security interests in Epixtar's assets and
changing of Epixtar's business.
All the above described securities are restricted and Epixtar has
undertaken to file a registration statement covering the resale of
shares of Common Stock issuable upon conversion of these notes and
exercise of these warrants.
F-38
EPIXTAR CORP.
2,475,376
shares of common stock
----------------
PROSPECTUS
----------------
EPIXTAR CORP.
----------------
[Alternative page for note financing prospectus]
PROSPECTUS
3,591,576 Shares of Common Stock
EPIXTAR CORP
Stockholder of Epixtar Corp. named under the caption "Selling Stockholder" may
offer and sell up to 3,491 576 Shares of our common stock. Of the shares offered
hereby all but 195 552 shares will be issued in the future pursuant to warrants
and convertible notespresently outstanding. We will not receive any of the
proceeds from the sale of shares by the selling stockholders. Concurrently with
this offering other stockholders are selling 2,475,376 shares subject to
outstand notes and warrants .On June 2004, the price of our Common Stock was $
per share.
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 THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
A-1
Our common stock being offered by this prospectus involves a high degree of
risk. You should read the "Risk Factors" section beginning on page 6 before you
decide to purchase any common stock.
The date of this Prospectus is
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell securities, and we are not soliciting offers to buy these securities, in
any state where the offer or sale is not permitted.
[Alternative page for note financing prospectus]
THE OFFERING
Our Securities
Securities Offered by
the Selling Stockholders CommonStock 3,591 576(1)
Concurrent Offering 2,475 376
Outstanding before the Offering. Common Stock: 11,158,338
and concurrent offering
Preferred Stock: 22,010
Outstanding after the Offering Common stock 16,758,465(4)
And concurrent offering Preferred Stock - none
A-2
(1) All but 195 552 shares of Common Stock are not presently outstanding
but issuable upon conversion of preferred stock or conversion of notes
and exercise of warrants held by the selling stockholders. The amount
also includes 300,000 shares reserved for issuance upon conversion of
accrued and interest. Depending upon the time of conversion a portion
of these shares may not be issued.
(2) The concurrent offering consists of shares of common stock subject to
convertible preferred stock,notes and warrants and shares issued in
2003 and 2004.
(3) Exclusive of shares subject to convertible securities, options, and
warrants including shares offered by the selling stockholders.
(3) Assumes conversion of all convertible securities and exercise of all
warrants owned by selling stockholders in offering and concurrent
offering..
A-3
[Alternative pages for note financing prospectus]
SELLING SHAREHOLDERS
..
All of the shares of common stock offered for resale by the selling stockholder
are shares issuable upon conversion of convertible notes and exercise of
warrants issued in connection with our 2004 note placements.
Set forth below is a description of the transactions pursuant to which
securities were issued to the selling stockholders.
We have received $7.5 million in new financing through a placement agent, Maxim
Group, LLC. Laurus Master Fund, Ltd. ("Laurus Funds") provided $5 million of
financing to us pursuant to a secured convertible term note, of which $1,930,000
is to be held in a restricted cash account under the sole control of Laurus and
may be released upon the fulfillment of certain conditions more fully described
in the agreements with Laurus. The term note is convertible at a fixed
conversion price of $2.96 or a total of 1,689,189 shares. In connection with the
issuance of the convertible term note, we also issued to Laurus Funds seven year
warrants to purchase up to 493,827 shares of Epixtar's common stock at prices
ranging from $4.05 to $4.66. Of these warrants to purchase 197,531 ,are
non-exercisable until the cash in the restriction account is released
The remaining $2.5 million was raised through the private sale of convertible
notes and common stock purchase warrants to accredited investors. Notes in the
principal amount of $1,000,000 or "Bridge Notes" are convertible at a price of
$2.37 per share of a total of 421,941 shares. In addition, the holders of the
bridge notes received five year warrants to purchase an aggregate of 34,722
shares of the Company's common stock at initial exercise prices of between
$5.05. After the Bridge notes were issued and prior to the Laurus transaction
with Laurus we issued $1,500,000 convertible short term or "Wedge Notes." The
wedge notes were to be repaid or converted upon consummation of a subsequent
transaction, the Laurus financing. Upon the Laurus financing $925,000 notes were
repaid and 195 552 shares were issued upon conversion.
In addition, the purchasers of these notes received five year warrants to
purchase an aggregate of 102,027 shares of the Company's common stock at initial
exercise prices of $4.05.
We also issued placement agent warrants in connection with each of the above
transactions to purchase an aggregate of 254,318 shares of common stock. Of
these warrants to purchase approximately 67,564 shares will be deferred until
the restrictive cash account referred to above is released. MAXIM Group LLC was
our placement agent, and Sands Bros & Co. Ltd was a selected dealer and received
84,466. The resale of the shares subject to these warrants are offered hereby.
The following table contains information concerning the beneficial
ownership of our common stock by the selling stockholders. The table assumes all
of the shares being offered will be sold and unless otherwise described these
shareholders do not own any additional shares of our common stock. Because the
selling stockholders may sell all, some or none of the shares that it holds, the
actual number of shares that will be sold by the selling stockholders upon or
prior to termination of this offering may vary. The selling stockholders may
have sold, transferred or otherwise disposed of all or a portion of their shares
since the date on which they provided the information regarding their common
stock in transactions exempt from the registration requirements of the
Securities Act. Unless otherwise indicated all shares are for Bridge and Wedge
investors. Additional information concerning the selling stockholders may be set
forth from time to time in prospectus supplements to this prospectus.
A-4
Identity of Shares
Stockholder or Group Offered
-------------------- -------
Laurus Master Fund (1) 2,431,627
Andrew Bello
Landing Wholesale Group Defined Benefit Plan 23,643
Bart Halpern, Inc. 26,234
Defined Benefit Pension Plan
Bernd Allen 23,643
Charles Haddad 23,643
Dalewood Associates, LP 45,666
David A. Dion 45,666
Donald Asher Family Trust 45,666
Grossman Family Trust 45,666
Jeffrey Grodko 23,643
Judith Barclay 45,666
Richard Kent 66,072
Thaddeus J. Derynda 45,666
A-5
Wayne Saker 23,643
Gerald Shike 3,401
Jack R. Lee
Mary K. Lee 20,406
Alfonso D'Amato
Defined Benefit Plan 6,802
John Viney 6,802
Lee R. Thiel, Trustee
Lee R. Thiel Rev. Trust DTD
9/23/92 3,401
NeilEllman 20,406
Steven E. Erickson TTE, TGI RRE
Dean M. Erickson Trust 20,406
Marvin Black 3,401
Jay S. Youngerman, MD 20,406
Lee Pearlmutter Revocable Trust
u/a dated 10/9/92 as amended 2/28/96 11,902
Joseph Marotta
Nancy Marotta 3,401
Micheal Harley 3,401
Jerold Weinger
Lilli Weinger 20,406
Richard Himpele
Linda Himpele 3,401
Frederick R. Brown 3,401
A-6
Kenneth Burdick
Denise Burdick 3,401
Leo Long 81,622
Alexander Sandler
Bella Sandler 3,401
John
Dilemme
3,401
David Sparks 6,802
Vincent Longobardi 20,406
Arthur Fixel
Deborah Fixel 3,401
Maxim Group, LLC.(2) 169,857
Sands
Brothers(2) 84,466
(1) Represents shares issuable upon conversion of the Laurus note and exercise
of Laurus warrants, including up to 248,311 shares issuable upon conversion
of accrued interest.
(2) Included shares subject to placement agent warrants described above.
A-7
You should rely only on the
information contained in this
document. We have not authorized
anyone to provide you with information
that is different. This document may
only be used where it is legal to sell
these securities. The information in
this document may only be accurate on
the date of this document.
Until ___________________, 2004, all
dealers that effect transactions in
these securities, whether or not
participating in this offering, may be
required to deliver a prospectus. This
is in addition to the dealers'
obligation to deliver a prospectus
when acting as underwriters and with
respect to their unsold allotments or
subscriptions.
[Alternative page for note financing prospectus]
EPIXTAR CORP.
3,591 576
shares of common stock
----------------
PROSPECTUS
----------------
A-8
PART II -- INFORMATION NOT REQUIRED IN PROSPECTUS
Indemnification of Directors and Officers.
No statute, charter provisions, by-laws, contract or other arrangements that
insures or indemnifies a controlling person, director or officer of the issuer
affects his or her liability in that capacity.
Other Expenses of Issuance and Distribution.
Registration Fees:
Transfer Agent Fees:
Printing Costs:
Legal Fees:
Accounting Fees:
Sales Commissions/Finders' Fees:
Recent Sales of Unregistered Securities.
In April, 2003, we issued 130,000 warrants to purchase shares of our common
stock to Sands Brothers pursuant to an investment advisory agreement. This
issuance was exempt from the registration requirements of the Securities Act
pursuant to Section 4(2) thereof.
In April 2003, we issued 13,617 shares of common stock to vendors and their
designees pursuant to an agreement with them. This issuance was exempt from the
registration requirements of the Securities Act pursuant to Section 4(2)
thereof.
In June 2003, pursuant to private placement, we issued 23,510 shares of our
preferred stock and warrants to purchase shares of our common stock. The
preferred stock is convertible into 1,175,000 shares of our common stock at a
present conversion price presently of $2.00. We also issued a warrant to these
investors to purchase our common stock. We also issued warrants to purchase
64,243 of our shares to persons who assisted in the offering. The issuance of
these securities was exempt from the registration requirements of the Securities
Act pursuant to Section 4(2) thereof
In July 2003, we issued 127,117 shares of our common stock to satisfy promissory
notes owed to two entities which produced telemarketing services in the past. In
an unrelated transaction we issued warrants to purchase shares to an advisor.
The shares were issued for investment to entities which had substantial
knowledge of our operations. Therefore the issuance of these shares is exempt
from the registration requirements of the Securities Act of 1933 pursuant to
Section 4(2).
II-1
In July 2003, we issued warrants to purchase 27,726 shares to an investment
advisor. We believe this issuance was exempt from the registration requirements
of the Securities Act pursuant to Section 4(2) thereof.
In September 2003, we issued warrants to purchase 100,000 shares of our common
stock to an investment advisor. This issuance was exempt from the registration
requirements of the Securities Act pursuant to Section 4(2) thereof.
In October 2003, we issued 50,000 shares of our common stock in connection with
an agreement to retain an investment advisor. In the same month we issued 15,652
shares of common stock in connection with the acquisition of assets Both of
these issuances were exempt from the registration requirements of the Securities
Act pursuant to Section 4(2) thereof.
In December, 2003, we issued $500,00 principal amounts of notes convertible into
125,000 shares of our common in a private placement. In addition, these lenders
received warrants to purchase 62,500 shares of our common stock. These issuances
were exempt from the registration requirements of the Securities Act pursuant
In March 2004, we issued 75,000 shares of our common stock in connection with an
agreement to retain an investment advisor. The investor signed an agreement
containing an investment representation. The issuance of these shares was exempt
from the registration requirements of the Securities Act pursuant to Section
4(2) thereof.
In May and April 2004 we consummated three separate convertible note
transactions aggregating $7,500,000. One of these notes for $1,500,000 has
either been converted or repaid. We also issued warrants to purchase 630,576
shares of our common stock to the note purchasers. The notes presently
outstanding are convertible into 2,111,130 shares of common stock and 195,552
shares have been issued upon conversion of one note. We also issued placement
warrants to purchase an additional 254,318 shares of common stock. Each investor
represented they were an accredited investor and further represented that they
would hold any acquired securities for investment.
In April 2004 we issued 65,033 shares of our common stock to the seller of
assets we acquired in the Philippines. The recipient represented that it would
hold those shares for investment. The issuance of these shares was exempt
from the registration requirements of the Securities Act pursuant to Section
4(2) thereof.
II-2
Exhibits.
Unless otherwise indicated filed herewith:
Exhibit No. Description of Document
----------- -----------------------
2.1 Exchange Agreement for the Purchase of Part of SavOnCalling.com,
LLC between Global Asset Holdings, Inc. and Transvoice
Investments, Ltd. Dated November 14, 2000.
2.2 Exchange Agreement by and between Transvoice Investments Ltd.,
Sheldon Goldstein & Global Asset Holdings, Inc. for National
Online Services, Inc. Dated March 31, 2001 (3)
3.1(a) Certificate of Incorporation (2)
3.1(b) Amendments to Certificate of Incorporation (2)
3.1(c) Amendment to Certificate of Incorporation (4)
3.1(d) Amendment to Cert. of Incorporation dated June 11, 2003 (5)
3.2 By-laws (1)
4.1 2001 Stock Option Plan (3)
4.2.1 Warrants issued to Brookfield Investments Ltd. (4)
4.3 Securities Purchase Agreement Dated as of June 11, 2003 (5)
4.4 Form of Warrant Issued in connection with June 11, 2003 Private
Placement (5)
4.4.1 Form of warrant issued to third parties in June Private
Placement (6)
4.5 Registration Rights Agreement with private placement investor (6)
dated as of June 11, 2003 (5)
4.6 Warrant issued to Alpine Capital Partners July 2003 (6)
I-3
4.6.1 Warrant issued to investment advisor September 2003 (6)
4.7 Note Purchase Agreement dated December 9, 2003 between Epixtar,
Subsidiaries and Note Investors (6)
4.8.1 Epixtar Corp. 7% Secured convertible note due December 9,
2004 (6)
4.8.2 Security Agreement between Epixtar Corp. and Subsidiaries and Note
Investor (6)
4.8.3 Warrant granted December 9, 2003 issued to Noteholders
Investor (6)
4.8.4 Registration Rights Agreement and Note Investor dated December 9,
2003 (6)
4.9.1 Subsription Agreement dated April 22,2004 between the Company and
Bridge Investors*
4.9.2 Form of convertible note dated April 22, 2004
4.9.3 Form of Warrant Issued in connection with Bridge Investor
financing*
4.10.1 Subsription Agreement dated May, 2004 between the Company and
Wedge Investors*
4.10.2 Form of 7% convertible note dated May 7, 2004 Form of Warrant
Issued in connection with Wedge Investor financing*
4.11.1 Securities Purchase Agreement dated May 14, 2004 between Epixtar,
Subsidiaries and Note Investor
4.11.2 Form of Laurus secured convertible term note
4.11.3 Master Security Agreement between the Company, certain
subsidiaries and Laurus Funds
4.11.4 Form of Warrant I Issued in connection with Laurus financing
4.11.4.1 Warrant II
4.11.5 Restrictive Account Agreement
4.11.5.1 Letter relating to Restricted Account Agreement
10.1 Agreement and release by and among Trans Voice Investments, Ltd.,
Sheldon Goldstein and Global Asset Holdings, Inc. dated November
30, 2001 (3)
10.2 Brookfield Security Agreement dated as of October 31, 2001 (4)
10.2.1 Letter of Brookfield (4)
I-4
10.3 Payment agreement entered into as of October 31, 2001 between
National Online Services, Inc. and Trans Voice Investments, Inc.
(3)
10.3.1 Amendment to restated payment agreement (4)
10.4 Code of ethics. (4)
10.5 Standard Office Building Lease between Epixtar Management Corp.
and Biscayne Center LLC. (6)
10.6 Agreement of lease between Megaworld and Epixtar Philippines IT
Enabled Services Corp. (6)
10.7 Reimbursement Agreement between Trans Voice L.L.C. and Epixtar
Corp. dated as of April 1, 2003 (6)
10.8 Master Service Agreement - Payment one corporation and the
Company subsidiary
10.8.1 Amendments to Master Service Agreement
10.9 Service Bureau Agreement between ACI Billing Services and Epixtar
Financial Corp.
21 List of Subsidiaries (6)
23.1 Consents of Independent Certified Public Accountants
1- Filed with our Form 8K on November 11,2000
2- Filed with our form 10SB on November 26, 1999
3- Filed with our form SB2 on June 30, 2003
4- Filed with our annual report on Form 10-K SB on April 11, 2003
5- Filed with our form 10SB on November 26, 1999
6- Filed with our form 10KSB on April 14, 2004
* To be filed by amendment
Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
I-5
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in the volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to the initial bona fide offering thereof.
I-6
Insofar as indemnification for liabilities arising under the Securities Act of
1933, as amended, may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions referenced in Item 15 of
this registration statement or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission this indemnification is
against public policy as expressed in the Securities Act of 1933, as amended,
and is, therefore, unenforceable. In the event that a claim for indemnification
against these liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by a
director, officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether the indemnification by it is against public
policy as expressed in the Securities Act of 1933, as amended, and will be
governed by the final adjudication of this issue.
I-7
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form SB-2 and authorized this registration
statement to be signed on its behalf by the undersigned, in the City of Miami,
State of Florida on June 17, 2004.
EPIXTAR CORP.
By: /s/ David Srour
---------------
David Srour Director, CEO
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates stated:
/s/ Irving Greenman June 17, 2004
-------------------
Irving Greenman
Director, CFO,
Principal Accounting Officer
/s/ William D. Rhodes June 17, 2004
---------------------
William D. Rhodes
Director, President
/s/ David Srour June 17, 2004
---------------
David Srour
Director
June 17, 2004
---------------
John Cooney
Director
June 17, 2004
----------------
Kenneth Elan
Director
June 17, 2004
----------------
David Berman
Director
/s/ Martin Miller June 17, 2004
----------------
Martin Miller
I-8
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-1 of Epixtar Corp. of our report dated March
17, 2004, which includes an emphasis of a matter paragraph citing reference to
Note 3 to the financial statements, relating to the consolidated financial
statements of Epixtar Corp. and subsidiaries for the year ended December 31,
2003, appearing in such Prospectus. We also consent to the reference to us under
the headings "Experts" in the Prospectus.
RACHLIN COHEN & HOLTZ LLP
Miami, Florida
June 17, 2004
I-9
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We consent to the use in this Registration Statement on Form S-I of our reports
dated __________ and March 11, 2003 (except for Note 2, which is dated April 5,
2004), relating to the consolidated financial statements of Epixtar Corp. and
Subsidiaries (formerly Global Asset Holdings, Incorporated and Subsidiaries) for
the years ended and December 31, 2001 December 31, 2002, and to the reference to
our firm under the caption "Experts" in the prospectus.
Liebman, Goldberg & Drogin LLP
Garden City, NY
June 17, 2004
I-10
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘SB-2/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 5/14/07 | | 73 |
| | 9/30/06 | | 120 |
| | 5/31/06 | | 70 |
| | 4/22/05 | | 74 |
| | 12/31/04 | | 7 | | 112 | | | 10-K, NT 10-K |
| | 12/9/04 | | 138 |
| | 12/8/04 | | 75 |
| | 10/1/04 | | 73 |
| Filed on: | | 6/18/04 | | 1 |
| | 6/17/04 | | 142 | | 144 |
| | 6/15/04 | | 7 |
| | 6/14/04 | | 3 | | 27 |
| | 5/31/04 | | 55 | | 65 |
| | 5/14/04 | | 3 | | 138 | | | SB-2/A |
| | 5/10/04 | | 2 |
| | 5/7/04 | | 138 |
| | 4/22/04 | | 138 |
| | 4/14/04 | | 139 | | | | | 10KSB |
| | 4/5/04 | | 90 | | 144 |
| | 3/31/04 | | 24 | | 123 | | | 10-Q, NT 10-Q |
| | 3/26/04 | | 21 | | 27 |
| | 3/17/04 | | 89 | | 143 |
| | 3/2/04 | | 123 |
| | 3/1/04 | | 101 |
| | 1/30/04 | | 57 |
| | 12/31/03 | | 10 | | 143 | | | 10KSB, 10KSB/A, NT 10-K |
| | 12/9/03 | | 138 |
| | 11/21/03 | | 18 | | 32 | | | DEF 14A |
| | 10/30/03 | | 18 | | 106 |
| | 8/14/03 | | 62 |
| | 7/24/03 | | 96 |
| | 6/30/03 | | 2 | | 139 | | | 10QSB, NT 10-Q, SB-2 |
| | 6/26/03 | | 2 |
| | 6/11/03 | | 137 | | | | | 8-K |
| | 6/1/03 | | 102 |
| | 5/31/03 | | 70 |
| | 5/22/03 | | 57 |
| | 4/11/03 | | 139 | | | | | 10KSB |
| | 4/1/03 | | 139 | | | | | NT 10-K |
| | 3/31/03 | | 31 | | 123 | | | 10QSB |
| | 3/11/03 | | 90 | | 144 |
| | 3/3/03 | | 103 | | 112 |
| | 2/1/03 | | 101 |
| | 1/31/03 | | 101 |
| | 1/17/03 | | 57 |
| | 12/31/02 | | 10 | | 144 | | | 10KSB, NT 10-K |
| | 12/6/02 | | 70 | | 112 | | | 8-K |
| | 11/25/02 | | 95 |
| | 11/20/02 | | 70 |
| | 11/2/02 | | 41 |
| | 10/31/02 | | 50 |
| | 9/30/02 | | 68 | | | | | 10QSB, 10QSB/A |
| | 8/28/02 | | 95 | | | | | 8-K |
| | 6/30/02 | | 68 | | | | | 10QSB, 10QSB/A |
| | 2/13/02 | | 50 |
| | 12/31/01 | | 28 | | 144 | | | 10KSB, 10KSB/A, NT 10-K |
| | 12/12/01 | | 50 |
| | 11/30/01 | | 68 | | 138 |
| | 10/31/01 | | 40 | | 139 |
| | 10/1/01 | | 69 |
| | 6/1/01 | | 95 |
| | 4/1/01 | | 68 |
| | 3/31/01 | | 68 | | 137 | | | 10QSB, 8-K, 8-K/A |
| | 2/22/01 | | 50 |
| | 1/1/01 | | 68 | | 93 |
| | 12/31/00 | | 28 | | | | | 10KSB, 10KSB/A, NT 10-K |
| | 11/14/00 | | 44 | | 137 |
| | 5/1/00 | | 95 |
| | 12/31/99 | | 28 | | | | | 10-K, NT 10-K |
| | 11/26/99 | | 139 | | | | | 10SB12B |
| List all Filings |
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