U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For the fiscal year ended December 31, 2005
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
Commission File Number 001-16381
ENDAVO MEDIA AND COMMUNICATIONS, INC.
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(Name of Small Business Issuer in its Charter)
DELAWARE 87-0642448
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
10 GLENLAKE PARKWAY, SUITE 130 30328
ATLANTA, GA (Zip Code)
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(Address of principal executive offices)
(678) 222-3445
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(Issuer's telephone number)
Securities registered under Section 12(b) of the Exchange Act: NONE
Securities registered under Section 12(g) of the Exchange Act:
COMMON STOCK, $.001 PAR VALUE
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(Title of Class)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes X No .
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Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B contained in this form, and no disclosure will be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendment to this Form 10-KSB [ ].
Registrant's revenues for its most recent fiscal year were approximately
$432,000.
The aggregate market value of the common stock held by non-affiliates computed
based on the closing price of such stock on the OTC Bulletin Board on March 31,
2006 was approximately $4,280,000.
On April 1, 2006, there were approximately 5,711,455 shares of the issuer's
common stock outstanding.
Transitional Small Business Disclosure Format: Yes No X
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TABLE OF CONTENTS
Item Page
Part I 1
Item 1. Business 1
Item 2. Property 7
Item 3. Legal Proceedings 8
Item 4. Submission of Matters to a Vote of Security Holders 9
Part II 10
Item 5. Market for Common Equity, Related Stockholder Matters
and Small Business Issuer Purchases of Equity Securities 10
Item 6. Management's Discussion and Analysis 11
Item 7. Financial Statements and Supplementary Data 27
Report of Independent Registered Public Accounting Firms F-1
Consolidated Financial Statements:
Consolidated Balance Sheet at December 31, 2005 and 2004 F-3
Consolidated Statements of Operations for the Years Ended
December 31, 2005 and December 31, 2004 F-4
Consolidated Statements of Cash Flows for the Years Ended
December 31, 2005 and December 31, 2004 F-5
Consolidated Statements of Stockholder's Deficit for the
Years Ended December 31, 2005 and December 31, 2004 F-6
Notes to Consolidated Financial Statements F-7
Item 8. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure 28
Item 8A. Controls and Procedures 28
Part III 29
Item 9. Directors and Executive Officers of the Registrant 29
Item 10. Executive Compensation 31
Item 11. Security Ownership of Certain Beneficial Owners and 33
Management and Related Stockholder Matters
Item 12. Certain Relationships and Related Transactions 36
Item 13. Exhibits, List and Reports on Form 8-K 37
Item 14. Principal Accountant Fees and Services 38
Signatures 40
This report contains trademarks and trade names that are the property of Endavo
Media and Communications, Inc. and its subsidiaries, and of other companies, as
indicated.
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PART I
Forward-Looking Statements
Part I of this Annual Report on Form 10-KSB, includes statements that constitute
"forward-looking statements." These forward-looking statements are often
characterized by the terms "may," "believes," "projects," "expects," or
"anticipates," and do not reflect historical facts. Specific forward-looking
statements contained in Part I of this Annual Report include, but are not
limited to the Company's expectation that the lawsuit in which it is currently
engaged will be settled without any material adverse effect on the Company.
Forward-looking statements involve risks, uncertainties and other factors, which
may cause our actual results, performance or achievements to be materially
different from those expressed or implied by such forward-looking statements.
Factors and risks that could affect our results and achievements and cause them
to materially differ from those contained in the forward-looking statements
include those identified in the section titled "Risk Factors" in Part II, as
well as other factors that we are currently unable to identify or quantify, but
may exist in the future.
In addition, the foregoing factors may affect generally our business, results of
operations and financial position. Forward-looking statements speak only as of
the date the statement was made. We do not undertake and specifically decline
any obligation to update any forward-looking statements.
ITEM 1. DESCRIPTION OF BUSINESS
Corporate History
Endavo Media and Communications, Inc., a Delaware corporation ("Endavo," the
"Company," "we," "us" or "our"), is headquartered in Atlanta, GA. We provide
digital video delivery solutions and products to owners of video and media
content through Internet Protocol, or "IP," based networks. Our website is
www.endavomedia.com. Any information contained on our website or any other
websites referenced on our website or in this Annual Report are not a part of
this Annual Report.
We were originally incorporated as Ceristar, Inc. in December 1999. On September
10, 2002, we entered into a merger with a subsidiary of Planet Resources, Inc.,
a Delaware corporation, in which Ceristar survived the merger and became a
wholly owned subsidiary of Planet and all of our issued and outstanding common
and preferred stock was exchanged for Planet's common stock. Accordingly, as a
result of the merger, we succeeded to the ownership of Planet, which was a
holding company, changed the name to CeriStar, Inc., and we continued to operate
our business through Susquina, Inc., a wholly-owned subsidiary of CeriStar.
Prior to the merger, Planet had no operations for two years. Subsequent to the
merger, we changed our name from CeriStar to Endavo Media and Communications,
Inc. in order to more accurately reflect the new direction of the Company and
our operating subsidiary remained Susquina, Inc. In 2006, we plan to change the
name of our holding company and change the name of our operating company to
Endavo Media and Communications, to better reflect our corporate and operating
structure. We have given notice to shareholders of such a name change as
described in the Subsequent Events section of this annual report.
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Business Description
Historically, we have provided bundled broadband services, including high-speed
Internet services, cable television and Voice over Internet Protocol, or "VOIP",
to residential and commercial customers through fiber-based community networks
and over fiber-to-the-premises, or "FTTP." In 2004, we began transitioning away
from the business of being a "triple play" services provider to focus on more
broad-based distribution of IP-delivered services and applications. In September
2005, we assigned our last two remaining residential FTTP networks, equipment
and services to the community developers in exchange for a full release of any
and all contract claims against the Company. In addition, we terminated all
supporting operations, including the employment of individuals who were employed
by the company for the direct purpose of operating and supporting those specific
residential networks and services in Utah. Although we have revised our business
plan, as discussed below, to focus on other aspects of IP services delivery to
customers and methodologies for delivering services, no formal plan has been
adopted by Company to formally discontinue this line of business as we may seek
to deliver IP-based services directly to residential FTTP networks and other
broadband communities as we expand our business in the future.
After our September 2005 reorganization and under a newly refocused business
plan, we began testing and launching specific new products designed to provide
digital content distribution and management solutions for content owners seeking
to distribute online and over broadband, or IP, networks. Specifically, our new
solutions facilitate the distribution of digital entertainment, information and
communications services, on behalf of the owners of content and applications
being distributed, to connected customers and broadband communities. We
primarily distribute over a national fiber (IP) backbone network to reach
consumers over the Internet, local broadband networks and through IP service
providers. We call our integrated content management & distribution system and
content delivery network the Endavo EcoSystem(TM). The initial phase of our
restructured business plan is to distribute digital video and programming to
certain targeted groups of broadband consumers through web-based portals, or
communities, and through the Windows Media Center Edition TM PC platform. These
platforms enable the delivery of audio and video to the PC, TV and mobile
devices.
Our initial content delivery products, launched commercially in late 2005, are
EnHance and EnGage. EnHance is is a cost effective and `viral' way for owners of
web-based portals to keep users coming back to their web-based communities by
providing DVD-quality video content custom designed for its community of users.
EnHance targets Content Owners that have an existing audience, such as radio,
web, or television and enables a Content Owner to increase his existing Viewer
or Listener base by offering his Programs globally to any broadband connected
user or web-based community. EnHance utilizes one of the latest legal
Peer-To-Peer delivery technologies, the larger the community of users becomes,
the lower the cost of delivery.
EnGage is our "Broadband TV" platform that allows Content Owners to deliver
their content directly to Viewers, in the form of "channels", who have installed
a simple to use interface in their PC or Microsoft Media Center Edition PC. Once
a Viewer `subscribes' to an EnGage service offered through certain web portals
and over certain media platforms, Programs for each Channel are pre-delivered in
full DVD quality automatically. Viewers watch the Programs that have thus been
delivered to a PC's hard disk whenever they want. Programs can be viewed on a PC
or on a TV using a Microsoft MCE PC or using one of many devices that connects
the PC to a TV.
After initial development and testing was successfully completed in late 2005,
we began marketing our EnHance and EnGage products to owners of independent film
libraries, TV shows and self-produced audio and video content. By the end of
2005, we were developing and testing numerous web-community, digital video
portal and "Broadband TV" projects for prospective customers.
Market Opportunity
The convergence of voice, video and data in today's marketplace is being
facilitated by the maturation of certain IP technologies that allow these types
of transmissions to be "digitized" into data packets and transported over common
data networks. Traditionally, voice, video and data services have been provided
via multiple delivery systems or networks, and, until recently, via separate
service providers. "Convergence" allows multiple forms of content and services
to be integrated and delivered digitally over the Internet and broadband
networks and then displayed over one central device or even over multiple
connected and interactive devices. For consumers, we see that these converging
industry forces are driving an rapidly growing demand for digital content and
services. On the commercial side, as a result of broadband and enabling
technologies continuing to spread to the mainstream consumer markets, we believe
that owners and producers of films and other programming will become
increasingly compelled to offer and distribute digital entertainment and media
to the broadband consumer, facilitating the technological and commercial basis
for the creation of new broadband-delivered services.
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Our Corporate Vision and Mission
Our vision is to become a leader in the "D-Commerce" space. At this point in
time, the D-Commerce industry is not clearly defined although many market
participants are beginning to emerge. Our strategy is to help define and lead
this new industry by facilitating the evolution of it by bringing together key
enabling technologies and an effective and profitable distribution system that
will provide a ready marketplace for digital content and services that represent
clearly defined value to the consumer marketplace.
In support of our corporate vision and overall strategic positioning,
Endavo mission is to provide turnkey digital content solutions that enable
managed distribution of entertainment, information and communications services
to broadband consumers. Endavo leverages the characteristics of broadband and
certain technologies to offer integrated service creation, delivery, accounting
and management solutions that represent clearly defined value to the owners of
entertainment and informative content and the digital marketplace as a whole.
We have identified certain key elements to increase our market presence and
growth strategy:
o Attract buyers and sellers to our products and solutions by offering
consumers more choice, control, value, security, and convenience in
their entertainment and information options through the Internet and
by offering sellers superior service creation, delivery, management
and accounting, turnkey solutions and clear opportunities to increase
return on their investment;
o Continually refine and develop our products, message and brand;
o Make strategically sound investments; and
o Build shareholder value through innovation, operational efficiency and
financial performance.
Business Strategy
We are uniting forms of entertainment and communications services into a
converged, all IP distribution and management system. We are enabling the
delivery of those services over a national IP Multicast network to local
broadband communities. We have combined all these components to provide an
end-to-end, "trusted" services system that guarantees delivery, quality of
service and accountability throughout the network from content and applications
to end-users.
Our business model is built around an open but managed network utilizing
standard interfaces, equipment and protocols that facilitates the integration
and efficient distribution of any certified product or service across the entire
network. Through this open platform, a robust and differentiated menu of
integrated IP content and services can be sent to the end user and delivered
over multiple qualified devices that communicate and perform different or
interrelated functions. The non-proprietary nature of our system allows for
scalability, interoperability, mesh redundancy and easy insertion of
next-generation services, applications and technologies.
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Products and Services
The Endavo EcoSystem
Endavo enables digital content and services to be distributed all the
way down to the end-user PC or enabled device directly, via delivery portals and
broadband Internet connections, or through entirely managed community networks
controlled by local network service providers. We have pulled together all the
service delivery, management and accounting components necessary to provide an
end-to-end, "trusted" ecosystem that guarantees delivery, QoS and accountability
all the way up and down the value chain - from content to consumers.
Endavo's integrated content and services management and distribution solution is
comprised of the following basic components to create an "EcoSystem" for digital
content and services delivery:
o * The Delivery Platforms - An integrated set of content and service
delivery platforms used to translate all content and applications into
common signals so they all can be transmitted together over a single
IP network and delivered to common end-user devices, such as the PC or
Media Center.
o * The Delivery Network - Endavo delivers digital signals over national
IP/MPLS backbone network that enable cost-efficient distribution over
the Internet or that can be picked up by directly by broadband
communities around the network and delivered over local fiber or other
last-mile broadband media, including wireless and copper, all the way
to geographical groups of end users. A unique characteristic of
Endavo's network will be the capability to broadcast, multicast and
unicast content, providing significant bandwidth efficiencies and
flexibility.
o * The Management and Accounting System (EnTrust) - An integrated
systems management and accounting framework allows Endavo to preside
over the entire system, bill for the services, secure and control
access to content, and provide customer support. This system also
provides remote management capabilities for the content and service
provider.
o * Consumer Devices - Endavo continuously seeks out and partners with
hardware and device partners that provide the devices necessary to
make network matter for consumers. Appropriate connected devices in a
home network environment, or even mobile, allow subscribers to
seamlessly manage and access content - including music, photos, TV,
and video (movies and self-created), surf the Internet and communicate
- from a central PC or server .
o A unique characteristic of Endavo's network will be the capability to
multicast and unicast content, creating significant bandwidth
efficiencies within an on-demand environment.
Types of Content that can be delivered through the Endavo EcoSystem
The following is a list of the content and services that can be distributed to
our distribution partners and subscribers, once appropriate content and
application providers upload and register their products with the EcoSystem.
o Voice Services. Basic to enhanced Voice over IP services and
applications
o Residential
o Enterprise
o Video Services
o IP-based Television
o Expanded Channel Line-Ups
o Pay-Per-View Television
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o Video-On-Demand Services
o Pay-Per View On-Demand
o High Definition Television
o Digital Music Channels
o Broadband TV
o Niche and specialized video content on-demand
o Video conferencing
o Interactive and community gaming
o Music/Audio
o Static media
o Image libraries
o Publications
o Books
o Electronic art
o Data and information services
o Advertising
Distribution Channels
We separate our distribution partners according to the method by which they are
connected to our marketplace of digital content and services:
o Physical Community Owners . This group of distribution partners
includes any entity that has a captured market based on geography.
This may include building owners, developers, corporate campuses,
office parks, homeowners associations, independent telcos or
municipalities. This group installs, or arranges to have installed,
the broadband connectivity (i.e., a fiber connection to the home or
office) required to deliver content to the subscriber. We currently
market our products and services primarily to existing service
providers, local government broadband projects, university campuses
and real estate developers. Geographically, we are currently focusing
on smaller to mid-sized cities and communities where the large
incumbent cable and telephone providers do not compete as
aggressively;
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o Virtual Community Owners . This group of distribution partners
includes any entity that has a captured market regardless of geography
and without the ability to determine the infrastructure on which
subscribers will access the EcoSystem. This may include university
student and/or alumni associations, professional associations, trade
groups, and ISPs.
Consumers
We separate consumers according to the method by which they are connected to our
marketplace of digital content and services:
o Local Broadband Communities . These communities that are enabled with
local broadband connectivity and are served by network service
providers, such as FTTP, telecom or cable providers. Local broadband
networks will be able to deliver services such as IPTV and network
based Video on Demand or DVR services.
o Online Subscribers . Even in the absence of living in an enabled
community, much of the content in the Endavo Ecosystem will still be
available to any Internet user with enough bandwidth (and the correct
hardware and software) to support the video streams and delivery .
Competition
The industry for telecommunications and broadband is very large and competitive.
We face significant competition from larger, better-capitalized companies, as
well as emerging companies, that operate and/or own broadband infrastructure in
our target markets. We may compete directly with cable and satellite television
providers, traditional local exchange carriers, VoIP telephony providers and
ISPs. Many of these established companies have resources greater than ours and
are direct competitors. We believe that we initially compete favorably with
these and other entities in the smaller markets on the basis of diversity of
products, distribution technology, systems support and quality assurance. Our
prices are expected to be generally lower and/or will include more features,
thereby offering what we believe to be a better value package. In addition, our
market emphasis permits us to make these advanced services available in
underserved markets. However, we cannot provide any assurance that our efforts
will be successful in overcoming the efforts of our competition.
Regulatory Matters
We do not hold any domestic license with the Federal Communication Commission,
or "FCC."
Presently, the FCC does not regulate companies that provide IP-based services as
common carriers or telecommunications service providers. Despite current laws,
the FCC's potential jurisdiction over the Internet is broad because the Internet
relies on wire and radio communications facilities and services over which the
FCC has long-standing authority.
Currently, we do not believe we are subject to any state regulation with respect
to our Internet related services. However, there can be no assurances that
IP-based services will not be subject to such regulations in the future.
Additionally, we are not aware of any pending legislation that would have a
material adverse affect on our operations.
We are currently licensed as a Competitive Local Exchange Carrier, or "CLEC,"
licensed with the Utah Public Utility Commission, or "PUC," under certificate
number 2389, but we do not offer traditional CLEC services. A CLEC designation
permits the resale of local telecommunications services.
As a CLEC, we may be subject to certain FCC rules and regulations for telephony
services. However, we believe that since we provide our service using 100% IP
Protocol, our VoIP services are not covered under current PUC and FCC
regulation. Any proposed or enacted changes should only affect any voice
services we offer, but it is possible that new legislation in the future could
also affect our data and video services.
We have previously requested CLEC status in other states and territories of the
United States, but do not presently intend to pursue such additional CLEC
licenses. We do not intend to renew our CLEC license in the future once our
current license term expires this year.
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Many states also impose various reporting requirements or require prior approval
for transfers of control of certified carriers, corporate reorganizations,
acquisitions of telecommunications operations, assignments of carrier assets,
including subscriber bases, carrier stock offerings and incurrence by carriers
of significant debt obligations. Certificates of authority can generally be
conditioned, modified, canceled, terminated or revoked by state regulatory
authorities for failure to comply with state law and the rules, regulations and
policies of the state regulatory authorities. Fines and other penalties,
including the disgorgement of all monies received for intrastate traffic from
residents of a state, may be imposed for such violations. In certain states,
prior regulatory approval may be required for acquisitions of telecommunications
operations.
Most states have consumer protection laws that further define the framework
within which our marketing activities must be conducted. We intend to comply
fully with all laws and regulations; however, the constraints of federal and
state restrictions could impact the success of direct marketing efforts and
otherwise increase our costs of doing business.
Future Regulation
Due to the increasing popularity and use of the Internet, it is possible that
additional laws and regulations may be adopted with respect to the Internet,
covering issues such as content, privacy, access to adult content by minors,
pricing, bulk e-mail, encryption standards, consumer protection, electronic
commerce, taxation, copyright infringement, and other intellectual property
issues.
We cannot predict the impact, if any, that future regulatory changes or
developments may have on our business, financial condition, or results of
operation. Changes in the regulatory environment relating to the Internet access
industry, including regulatory changes that directly or indirectly affect
telecommunication costs or increase the likelihood or scope of competition from
regional telephone companies or others, could increase our operating costs,
limit our ability to offer services and reduce the demand for our services.
As the law in this area develops, we could become liable for information carried
on, stored on, or disseminated through our gateways, it may be necessary for us
to take steps to reduce our exposure to this type of liability through
alterations in our equipment, expanded insurance coverage or other methods. This
may require us to spend significant amounts of money for new equipment or
premiums and may also require us to discontinue offering certain of our products
or services.
In a report to Congress in 1998, the FCC stated its intention to consider
whether to regulate voice and fax telephony services provided over the Internet
as "telecommunications" even though Internet access itself would not be
regulated. The FCC is also considering whether such Internet-based telephone
service should be subject to universal service support obligations or pay
carrier access charges on the same basis as traditional telecommunications
companies.
A governmental body could impose further sales and other taxes on the provision
of our services, which could increase the costs of doing business. A number of
state and local government officials have asserted the right or indicated a
willingness to impose taxes on Internet-related services and commerce, including
sales, use and access taxes. To date, no such laws have become effective. We
cannot accurately predict whether the imposition of any such taxes would
materially increase our costs of doing business or limit the services that we
provide. It may be possible to pass on some of these costs to the consumer and
continue to remain competitive.
Employees
As of March 31, 2006, we had 6 employees and 3 independent contractors. All of
our employees are full-time. Of our 6 employees, 5 are in service operations and
1 is in general administration. Of our 3 independent contractors, two provide
sales and marketing services on a month-to-month basis and 1 provides finance
and administrative services. We laid off 8 employees in 2005, as a result of
financial difficulties and the discontinuance of operations in Utah, and 3 of
our employees resigned voluntarily in 2005 for similar reasons. None of our
employees are represented by a labor union or subject to a collective bargaining
agreement. We have never experienced a work stoppage and consider our employee
relations to be good.
ITEM 2. DESCRIPTION OF PROPERTY
Our corporate headquarters was located in Salt Lake City, Utah until moved to
Atlanta, GA in December 2005. We have terminated our lease of approximately
2,000 square feet of office space in Utah and signed a new lease for shared
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office space in Atlanta for approximately $350 per month. We believe that our
facilities are adequate to meet our requirements at this time, but plan to seek
permanent office space in Atlanta during 2006, as we expand our business plan
and organization.
ITEM 3. LEGAL PROCEEDINGS
On March 4, 2004, Wired, L.C. filed a lawsuit against us in the Third Judicial
District Court, Salt Lake County, State of Utah. Wired alleges a breach of
contract under an agreement that we entered into with Wired. We believed that
the case was without merit and in our response filed on March 24, 2004, we
denied any breach and asserted various affirmative defenses along with
counterclaims against Wired for declaratory judgment. On July 1, 2004, we
settled this lawsuit and agreed to pay Wired $90,000 and return to Wired certain
equipment, of which we had to replace approximately $54,000 worth. In November
2004, Wired claimed that we breached the terms of the July agreement and filed a
Motion for Entry of Final Judgment. We opposed Wired's claim and filed a Motion
to Enforce Settlement Agreement on December 10, 2004. We believed that the
continued prosecution and defense of these Motions would be expensive and that
there was uncertainty and risk in the outcome of any litigation. On April 14,
2005, we agreed to full and complete settlement of all claims related to this
case in exchange for our payment to Wired of $60,000.
In August 2003, we delivered to Basin Digital Media, LLC certain equipment,
which redelivered the equipment to Summit Development and Management, LLC for
installation in a residential apartment complex in Utah County, Utah known as
Parkway Crossing. This equipment was to be used in connection with a Service
Agreement between us and Basin. To obtain such equipment, we entered into a loan
transaction with Ridgeline, LLC and executed a secured promissory note due
August 1, 2004 in the principal sum of $182,000. We also entered into a
Collateral Assignment and Security Agreement to secure repayment of the note. In
addition, David Bailey, our former CEO and Chairman of the Board, entered into a
personal guarantee with Ridgeline with respect to our obligations under the
note. On January 7, 2004, Summit and/or Basin delivered a notice of termination
of the Service Agreement, which we refused to accept as we believe they did not
have any grounds to terminate the agreement and thereafter they defaulted on
their obligations under the Service Agreement, as well as their obligation to
pay for the equipment. As a result, on August 1, 2004 we defaulted on our
obligations under the note to Ridgeline. On June 18, 2004, we filed a lawsuit in
the Third Judicial District Court, Salt Lake County, State of Utah against
Parkway Crossing, Basin and Summit alleging breach of contract, breach of the
covenant of good faith and fair dealing, conversion, fraudulent inducement and
tortious interference with economic relations. Parkway Crossing and Summit
subsequently filed a motion to dismiss the action, which was denied and the
parties are currently in the discovery phase. As a result of our default on the
promissory note with Ridgeline, Ridgeline made demand upon us and Mr. Bailey for
payment of the entire remaining unpaid portion of the note. In September 2004,
Mr. Bailey paid Ridgeline $200,000 under his guarantee and took an assignment of
all of Ridgeline's rights and interest in the note and related Security
Agreement. At the same time, Mr. Bailey made a demand upon us for payment of the
note and related obligation.. On January 26, 2005, Mr. Bailey filed a claim in
the Fourth Judicial District Court, Utah County, State of Utah against us, Basin
and Summit alleging breach of contract and unjust enrichment and seeking
judgment against all parties in the amount of $200,000, plus interest, as well
as possession of the equipment that was collateral for the note and fees and
costs. We expect that this lawsuit will be settled without any material adverse
effect on us; however, we cannot provide assurance that it will be settled on a
basis that it acceptable to us if at all or that such settlement will not have
an adverse effect on our business or operations.
On or around August 17, 2005, Suzanne Eyre, a former employee of the company,
filed a wage claim in the State of Utah for the amount of $3,158.05. We answered
the claim with a payment of $1,138.44 and an explanation of what we believed was
owed to Ms. Eyre. A settlement or hearing is expected to be conducted by the
Utah Labor Commission to decide the final outcome of this wage claim. We do not
believe that the company has further obligation to Ms. Eyre, but cannot provide
assurance that the result of the Labor Commission decision will be in our favor.
On or around September 20, 2005, Lewis Chandler, a former employee of the
company, filed a wage claim in the State of Utah for the amount of $10,000.00.
We responded the claim, stating that we do not owe Mr. Chandler any amount,
based on certain equipment that remains in Mr. Chandler's possession and other
circumstances surrounding his employment agreement and performance thereunder. A
settlement or hearing is expected to be conducted by the Utah Labor Commission
to decide the final outcome of this wage claim. We do not believe that the
company has further obligation to Mr. Chandler, but cannot provide assurance
that the result of the Labor Commission decision will be in our favor.
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In our second quarter 2005 filing, we reported a potential claim against us by
SGS Associates (SGS) and General Construction and Development, Inc. (GCD)
related to a dispute regarding a contractual Agreement we are under to provide
network engineering and communications services to residential communities being
developed by SGS and GCD. We have also potential claims or counterclaims against
SGS and GCD for nonpayment for network plant and equipment installation and
maintenance under the contract. On September 20, 2005, we assigned the community
networks and certain equipment to SGS and GCD in exchange for a full release of
claims. We have discontinued all services and operations related to these
communities.
In addition to the foregoing, we may, from time to time, be party to certain
legal proceedings and other various claims and lawsuits in the normal course of
our business, which, in the opinion of management, are not material to our
business or financial condition.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
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PART II
ITEM 5. MARKET FOR COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND SMALL
BUSINESS ISSUER PURCHASES OF EQUITY SECURITIES
Our Common Stock
Our common stock now trades publicly on the OTC Bulletin Board under the symbol
"EDAV". Previous to March 13, 2006, our common stock traded under the symbol
"EDVO". The OTCBB is a regulated quotation service that displays real-time
quotes, last-sale prices and volume information in over-the-counter equity
securities. The OTCBB securities are traded by a community of market makers that
enter quotes and trade reports. This market is extremely limited and any prices
quoted are not a reliable indication of the value of our common stock.
The following table sets forth the quarterly high and low bid prices per share
of our common stock by the OTCBB during the last two fiscal years. The quotes
represent inter-dealer quotations, without adjustment for retail mark-up,
markdown or commission and may not represent actual transactions. The trading
volume of our securities fluctuates and may be limited during certain periods.
As a result of these volume fluctuations, the liquidity of an investment in our
securities may be adversely affected.
Fiscal Quarter High Low
Year Ended
2004 March 31, 2004 $ .46 $0.15
June 30, 2004 $0.28 $0.05
September 30, 2004 $0.80* $0.02*
December 31, 2004 $2.26 $0.51
2005 March 31, 2005 $1.61 $1.08
June 30, 2005 $1.39 $0.125
September 30, 2005 $0.17 $0.075
December 31, 2005 $ .11 $0.05
* On September 23, 2004, the Company effected a 1-for-16 reverse stock split.
For a more detailed discussion of this reverse stock split and recent steps
taken by the Company to address certain oversights in connection with that
corporate action see Item 6. Management's Discussion and Analysis - Recent
Developments.
Holders of Record
On December 31, 2005, there were approximately 1,600 holders of record of our
common stock according to our transfer agent. The Company has no record of the
number of shareholders who hold their stock in "street" name with various
brokers.
Dividends
We have never paid a cash dividend on our common stock nor do we anticipate
paying cash dividends on our common stock in the near future. It is our present
policy not to pay cash dividends on the common stock but to retain earnings, if
any, to fund growth and expansion. Under Delaware law, a company is prohibited
from paying dividends if the company, as a result of paying such dividends,
would not be able to pay its debts as they become due, or if the company's total
10
liabilities and preferences to preferred shareholders exceed total assets. Any
payment of cash dividends on our common stock in the future will be dependent on
our financial condition, results of operations, current and anticipated cash
requirements, plans for expansion, as well as other factors our board of
directors deems relevant.
Sales of Unregistered Securities
In addition to sales previously reported in our public filings with the
Securities and Exchange Commission, the following sales of unregistered common
stock occurred in 2005, as fully described in Management' Discussion and
Analysis below:
SovCap Equity Partners Regulation S Stock 9/30/2005 56,180 $0.89
Purchase
SovCap Equity Partners Regulation S Stock 10/17/2005 44,944 $0.89
Purchase
SovCap Equity Partners Regulation S Stock 12/19/2005 86,182 $0.89
Purchase
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS
For a description of our significant accounting policies and an understanding of
the significant factors that influenced our performance during the fiscal year
ended December 31, 2005, this "Management's Discussion and Analysis" should be
read in conjunction with the Consolidated Financial Statements, including the
related notes, appearing in Item 7 of this Annual Report.
Forward-Looking Statements
This portion of this Annual Report on Form 10-KSB, includes statements that
constitute "forward-looking statements." These forward-looking statements are
often characterized by the terms "may," "believes," "projects," "expects," or
"anticipates," and do not reflect historical facts. Specific forward-looking
statements contained in this portion of the Annual Report include, but are not
limited to the Company's (i) expectation that certain of its liabilities listed
on the balance sheet under the headings "Accounts Payable," "Accrued
Liabilities" and "Note Payable" will be retired by issuing stock versus cash
during the next 12 months; (ii) expectation that it will continue to devote
capital resources to fund continued development of voice, video and data
services and IP open standard architecture and maintain and grow existing
marketing capacity; (iii) expectation that it will execute employment agreements
with certain executive officers in the next fiscal quarter; (iv) anticipation
that it will incur significantly less capital expenditures for broadband fiber
infrastructure as a result of its new emphasis as a distributor of IP-based
content and services to existing broadband network and service providers; (v)
anticipation that it will incur significantly more capital expenditures as it
expects to procure new equipment and software systems to be installed into
existing network facilities that will accommodate the delivery of content and
services over its network or the network of its partners; (vi) anticipation of
acquiring credit or leasing facilities by a third party in order to finance new
equipment expenditures; and (vii) anticipation of a significant increase in
operational and SG&A costs as it accelerates the development and launch of new
operations in 2005.
Forward-looking statements involve risks, uncertainties and other factors, which
may cause our actual results, performance or achievements to be materially
different from those expressed or implied by such forward-looking statements.
Factors and risks that could affect our results and achievements and cause them
to materially differ from those contained in the forward-looking statements
include those identified in the section titled "Risk Factors," as well as other
factors that we are currently unable to identify or quantify, but that may exist
in the future.
In addition, the foregoing factors may affect generally our business, results of
operations and financial position. Forward-looking statements speak only as of
the date the statement was made. We do not undertake and specifically decline
any obligation to update any forward-looking statements.
Executive Overview
As we embark upon a new year and a new stage in Endavo's development, we are
faced with a number of challenges. However, we believe we have made significant
progress during the last few months and further believe that we have
repositioned ourselves with a view toward the launch of new strategic plans. We
are confident that we can accomplish our interrelated objectives and believe our
new plans will help us create a robust and differentiated product set and
business model.
11
During the third and fourth quarter of 2005, we focused primarily on
consolidating our previous local operations in Utah and restructuring our
balance sheet and capitalization in order to position ourselves to attract
equity capital and launch new content delivery products. We quickly realized
some of the key challenges in executing these activities, primarily, the lack of
capital. We needed to acquire and install new equipment at the new data center
in Tampa and in Atlanta in order to accommodate new requirements for our content
storage services, content delivery products, content management system for our
new customers. For initial installments, we were able to acquire a significant
amount of equipment through our strategic partnerships, rather than purchasing
it all ourselves in the retail markets. This helped conserve precious capital.
There will be other issues that will emerge that will require our attention and
ingenuity if we are to be successful in delivering IP-based content. These
include potential challenges such as digital rights management, or "DRM,"
franchise rights, state and federal regulatory issues and issues related to the
taxation of Internet services. Although we believe that the market will
ultimately be characterized more by the need to spread opportunity and
information than to protect manufacturers of content and established interests,
we do recognize that we may need to become more sensitive to DRM issues at some
point. We can relieve many of these potential pressures by leveraging partners
that are already solving these issues. We also think the "local" delivery nature
of the multicast model, as opposed to broadcast, will help us circumvent some of
these issues, at least at the outset.
We will confront our challenges as they emerge. However, we believe that we
remain ahead of the market in terms of our vision of "convergence" and that we
have a unique window of opportunity to lead the market in terms of our product
set and our ability to locally deliver integrated digital services to wide array
of broadband customers.
Our key attributes are our small size and our relationships with important
content owners who want to use our new products and services. Being a small
company means that our planned changes in the strategy can quickly make
meaningful impact on results without a major overhaul if we are successful in
implementation.
Recent Developments
Agreements
We executed a Memorandum of Understanding with Fonix Telecom, Inc. on December
6, 2005 whereby Fonix agrees to provide certain "back office", technical support
and transactional support for our products and customers. As of December 31,
2005, we had integrated Fonix services into our developmental projects. We are
in the process of generating long term contracts for the use of Fonix' back
office services and we expect to enter into a long term agreement with Fonix,
although we cannot give assurance that we will enter into a long term agreement.
If we do not, we will need to seek an alternative provider for outsourced
technical and transactional support.
We executed a Master Services Agreement on November 28, 2005 with Ahora LLC.
Under the agreement, Ahora LLC will deploy broadband video services, using
Spanish Language video content that it owns or has the right to distribute,
using our EnHance and EnGage products. The contract has a term of 14 months and
automatically renews for 2 years thereafter.
We executed an agreement with Action Cat Entertainment, LLC on November 25, 2005
to acquire the rights to distribute certain feature films owned by Action Cat
through our "Movies 4 Gamers" website. The agreement provided us with rights to
distribute the films through February 28, 2006. We expect to enter into a longer
term agreement with Action Cat, but we cannot provide assurance that we will
reach a long term agreement.
We executed a Memorandum of Understanding on October 17, 2005 with WV Fiber LLC
whereby we and WV Fiber would seek to enter into an Indefeasible Right of Use
and Revenue Share Agreement for the purpose of using WV Fiber's IP network to
host and serve our broadband video services. As of December 31, 2005, we had
installed our equipment in and were hosting our development and operations from
WV Fiber's Atlanta facility. Although we are confident that we will enter into a
long term contract with WV Fiber for the use of their IP network to support our
business plan, we can give no assurance that we will reach such agreement. If we
do not, we will need to find an alternative facility and network from which we
deliver our broadband services and products.
We executed a working Letter of Intent on September 1, 2005 with FIT Development
Group, LLC to develop broadband video services for their clients, including Get
FIT with Ron and Healthy Talk TV with Deborah Ray, using our EnHance solutions.
As of December 31, 2005, we were continuing development of agreed services and
web communities and were preparing to commercially launch the "Get FIT with Ron
website". Although we are continuing to work closely with FIT Development Group
to develop their broadband services, we can give no assurance that we will reach
a long term agreement.
12
Private Placement Offerings
Between September 30, 2005 and November 30, 2005, the Company sold to
SovCap Equity Partners, LTD. a total of 187,306 units (each, a "Unit"), each
Unit consisting of one share of the common stock, par value $.001 per share, of
the Company ("Common Stock"), and one warrants (a "Purchaser's Warrant" and
collectively, the "Purchaser's Warrants") entitling the registered holder
thereof to purchase one share of Common Stock at a price of $1.27 at any time
during the five year term. The Units shall be purchased at a price of $0.89 per
Unit.
No underwriting discounts or commissions were paid by the Company in
connection with this transaction. The transaction was exempted from registration
under Section 4(2) of the Securities Act of 1933, as amended, and Section 506 of
Regulation D promulgated thereunder. The Company relied, as applicable, upon the
representations made by the purchasers of such securities in determining that
such exemptions were available.
On February 22, 2005, the company consummated a private placement of
$1,425,000 principal amount of 8% senior secured convertible notes payable to a
group of professional investment funds. These notes bear an interest rate of 8%,
are secured by the general assets of the company, and are due on February 22,
2007. The notes are convertible at $.89, However the conversion price may be
reset under certain conditions on the 180th day after we file our 2005 audited
financials with the sec on form 10k/sb. The transaction also included the
issuance of 1,597,529 common stock warrants, exercisable at $1.27, And
additional investment rights. The additional investment rights expired after six
months from the date of issuance.
On July 1, 2005, the Company entered into an agreement (the "Exchange
Agreement") with the holders of 8% Senior Secured Convertible Notes to amend the
terms and conditions of the purchase warrants to purchase 1,597,529 shares of
the Company's common stock. Pursuant to the Exchange Agreement, the exercise
price of the Warrants was adjusted from $1.27 per share to $0.1425 per share.
The investors agreed to waive any anti-dilution rights they may have as a result
of the reduction in the exercise price of the Warrants pursuant to the Exchange
Agreement. In addition to the amendment to the exercise price, and in order to
encourage timely exercise of the Warrants, the Company agreed to issue 3.5
shares of the Company's restricted common stock ("Restricted Shares") to the
investors for each share of common stock issuable upon conversion of $1,425,000
aggregate principal amount 8% senior secured convertible promissory notes issued
to such investors pursuant to the Purchase Agreement. We issued 5,591,352
pursuant to this agreement.
Critical Accounting Estimates and Assumptions
The preparation of our financial statements in conformity with accounting
principles generally accepted in the United States of America requires our
management to make certain estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. As such, in accordance with
the use of accounting principles generally accepted in the United States of
America, our actual realized results may differ from management's initial
estimates as reported. A summary of our significant accounting policies are
detailed in the notes to the financial statements, which are an integral
component of this filing.
We identified our most critical accounting policies to be related to revenue
recognition, allowance for doubtful accounts, asset valuation and accounting for
stock options. A complete list of our accounting policies is contained in Note 1
to the notes of the consolidated financial statements. The following summarizes
critical estimates made by management in the preparation of the financial
statements.
Revenue Recognition . Revenue is recognized when a valid contract or purchase
order has been executed or received, services have been performed or product has
been delivered, the selling price is fixed or determinable, and collectability
is reasonably assured. Payments received prior to performance are recorded as
deferred revenue. We enter into long-term service contracts in which we receive
payments for initial equipment installation. These revenues are typically
deferred over the life of the service term. Equipment installations relating to
residential monthly contracts are recognized when installed.
Allowance for Doubtful Accounts . Financial instruments that potentially subject
us to concentration of credit risk consist primarily of trade receivables. In
the normal course of business, we provide on-going credit evaluations of our
customers and maintain allowances for possible losses, which, when realized,
have been within the range of management's expectations. Management assesses its
estimates of uncollectible accounts based on age of receivables and direct
negotiations with our customers if disputes arise.
13
Impairment of Long-lived Assets . We review our long-lived assets for impairment
when events or changes in circumstances indicate that the book value of an asset
may not be recoverable. We evaluate, at each balance sheet date, whether events
and circumstances have occurred that indicate possible impairment. We use an
estimate of future undiscounted net cash flows of the related asset or group of
assets over their estimated remaining life in measuring whether the assets are
recoverable.
Accounting for Stock-based Compensation . We account for stock-based
compensation issued to employees and directors under Accounting Principles Board
Opinion, or "APB," No. 25, "Accounting for Stock Issued to Employees," and
related interpretations. Under APB No. 25, compensation related to stock
options, if any, is recorded if an option's exercise price on the measurement
date is below the fair value of the Company's common stock and amortized to
expense over the vesting period. Compensation expense for stock awards or
purchases, if any, is recognized if the award or purchase price on the
measurement date is below the fair value of the common stock and is recognized
on the date of award or purchase. Statement of Financial Accounting Standards,
or "SFAS," No. 123, "Accounting for Stock Based Compensation," requires pro
forma information regarding net loss and net loss per common share as if the
Company had accounted for its stock options granted under the fair value method.
We account for stock-based compensation issued to persons other than employees
using the fair value method in accordance with SFAS No. 123 and related
interpretations. Under SFAS No. 123, stock-based compensation is determined as
either the fair value of the consideration received or the fair value of the
equity instruments issued, whichever is more reliably measurable. The
measurement date for these issuances is the earlier of either the date at which
a commitment for performance by the recipient to earn the equity instruments is
reached or the date at which the recipient's performance is complete.
Results of Operations
Our operating results showed a increase in revenues and overall improved
financial performance for the year ended 2005.
Summary of Operations
2005 2004
Revenues $ 434,000 $ 178,000
Cost of Revenue 131,000 419,000
Gross Profit (Loss) 303,000 (240,000)
Selling, General and Administrative
Costs (2,838,000) (3,496,000)
Operating (Loss) (2,537,000) (4,154,000)
Other Income (Expense) (1,843,000) (1,158,000)
Loss From Litigation Settlements ( 0) (213,000)
Loss From Impairment of Assets ( 0) (417,000)
Net (Loss) $ (4,380,000) $ (5,303,000)
Our revenues increased 143% in 2005 compared to 2004. At the same time, our cost
of revenues decreased by 68.7% and decreased as a percentage of revenue to 30%
in 2005 compared to 235% in 2004. Selling, general and administrative costs
declined as a percentage of revenues in 2005 as compared to 2004, resulting in a
decrease of 75% in our operating loss in 2005.
Revenues
Our revenues increased to $434,000 in 2005 from $178,000 in 2004. This was due
in large part to recognition of deferred revenue attributed to the termination
of long term service contracts with our residential communities in Utah. Without
the deferred revenue gain our service revenue, which comprised the majority of
our actual revenue in 2005, our revenue would have decreased to $118,000 in 2005
from $147,000 in 2004. This decrease in service revenue is the result of a lack
of new service agreements during 2005 and the termination of service agreements
with our residential customers during the third quarter of 2005. In the fourth
quarters of 2005, we received minimal revenues as we focused on our corporate
restructure and redirection of our business plans .
14
Cost of Revenues and Gross Margins
Our cost of revenues decreased to $131,000 in 2005 from $419,000 in 2004, a
decrease of 68.7%. This was the result of the significant reduction of our cost
of network and Internet connectivity, or "bandwidth", from $327,000 in 2004 to
$86,000. We discontinued our agreements with our telecommunications and network
bandwidth provider, which represented a significant percentage of our cost of
revenues, as we switched to a new lower cost bandwidth provider and began
providing VoIP services to our residential customers directly from our new local
facility in Orem, Utah. We were also able to reduce our Cable TV expense to
$10,000 in 2005 compared to $63,000 in 2004.
Our gross margin on sales in 2005 was $303,000 compared to a negative gross
margin of $(240,000) in 2004. This increased margin was primarily due to the
lower bandwidth and cable TV costs related to delivering services to our
residential customers in 2005 and also due our recognition of deferred revenue,
which resulted in a significant increase in sales reported.
Selling, General and Administrative Costs
Selling, general and administrative costs decreased to $2,838,000 in 2005
compared to $3, 496,000 in 2004. These costs decreased primarily due to a
significant reduction in payroll expenses from $1,994,000 in 2004 to $781,000 in
2005 and the reduction of bad debt expense, offset by a dramatic decrease in
payroll expense from $ 984,000 in 2003 to $1, 351,000 in 2004. This decrease in
payroll was partially offset by an increase in contract labor to $806,000 in
2005 from $280,000 in 2004. We also had a significant decrease in our
depreciation expense from $158,000 in 2004 to $78,000 in 2005, primarily due to
a reduced amount of new equipment acquired in 2005 and the divesture of certain
equipment related to our residential services in Utah.
Selling, General and Administrative
2005 2004
Payroll Expenses $ 781,000 $ 1,994,000
Contract Labor 806,000 280,000
Office Expense 39,000 43,000
Professional Services 620,000 583,000
Travel 183,000 165,000
Bad Debt (2,000) 35,000
Depreciation 78,000 158,000
Other 333,000 238,000
Total $ 2,838,000 $ 3,496,000
Other Income (Expense)
2005 2004
Interest expense $ 1,840,000 $ 1,159,000
Other 3,000 (1,000)
Total $ 1,843,000 $ 1,158,000
15
Liquidity and Capital Resources
At the end of the third quarter of 2005, we began consolidating our operations
in order to reduce our operating expenses and focus on our new business plan.
Although we continue to develop products and services to deliver digital video
and communications over broadband networks and continue, in September 2005, we
discontinued providing voice, video and data services directly to our remaining
residential communities in Utah. We consolidated our operations in Utah and
moved our headquarters and operations to Atlanta, Georgia to support our new
business opportunities. As a result of this transition, we do not currently have
substantial revenues to fund ongoing operations and, therefore, rely upon
best-efforts third party funding from individual accredited and institutional
investors. We do not have any significant credit facilities available with
financial institutions or other third parties. During 2005, we financed
operations through the sale of equity and debt securities. Though we have been
successful at raising capital on a best efforts basis in the past, we can
provide no assurance that we will be successful in any future funding efforts.
If we are unable to either obtain financing from external sources or generate
internal liquidity from operations in the future, we may need to curtail
operations.
Current assets for 2005 approximately totaled $21,000 as compared to $53,000
reported for 2004. During 2005, we received net proceeds of $2,277,000 through
the issuance of convertible promissory notes, through the exercise of common
stock warrants and the sale of common stock.
We anticipate that we will incur significantly less capital expenditures for
broadband fiber infrastructure and communications services (e.g., bandwidth,
cable TV) as a result of our new emphasis as a distributor of IP-based video
content and services to online consumers and existing broadband network and
service providers. Historically, we built out fiber-to-the-premise networks and
provided voice, video and data services directly to residential customers,
thereby incurring significant capital resources. Until we achieve substantial
revenues or profitability over several quarters, we must be considered as a
start-up entity. We have also reduced our operations and SG&A costs as a result
of consolidating our payroll and operations. Going forward, however, we may
incur significantly more capital expenditures if we need to procure new
equipment and software systems to be installed into existing network facilities
that will accommodate the delivery of content and services over our network or
the network of our partners. We also anticipate a significant increase in
operational and SG&A costs, as we accelerate the development and launch of new
operations in 2006.
Going Concern
Our financial statements have been prepared in accordance with accounting
principles generally accepted in the United States applicable to a going concern
that contemplates the realization of assets and the satisfaction of liabilities
and commitments in the normal course of business. Our general business strategy
is unproven, and we have only recently begun to record revenues. To date, we
have relied primarily on the sale of our equity and debt securities to fund our
operations. We have incurred losses since our inception and we continue to incur
legal, accounting, and other business and administrative expenses. Our auditor
has therefore recognized that there is substantial doubt about our ability to
continue as a going concern.
Risk Factors
An investment in our common stock is highly speculative, involves a high degree
of risk, and should be made only by investors who can afford a complete loss.
You should carefully consider the following risk factors, together with the
other information in this prospectus, including our financial statements and the
related notes, before you decide to buy our common stock. Our most significant
risks and uncertainties are described below; however, they are not the only
risks we face. Additional risks and uncertainties not presently known to us or
that we currently deem immaterial also impair our business operations. If any of
the following risks actually occur, our business, financial condition, or
results of operations could be materially adversely affected, the trading of our
common stock could decline, and you may lose all or part of your investment.
16
RISKS RELATED TO OUR BUSINESS
We have a history of losses, anticipate future losses and our previous
independent auditors have expressed doubt about our ability to continue as a
going concern, any of which may hinder our ability to obtain future financing.
In their report for our most recent fiscal year, our independent auditors stated
that our financial statements for the year ended December 31, 2005 were prepared
assuming that we would continue as a going concern. Our ability to continue as a
going concern is an issue raised as a result of a loss for the year ended
December 31, 2005 in the amount of approximately $4,380,000 and a loss for the
year ended December 31, 2004 in the amount of approximately $5,300,000. We
continue to experience net operating losses. Our ability to continue as a going
concern is subject to our ability to generate a profit and/or obtain necessary
funding from outside sources, including obtaining additional funding from the
sale of our securities, increasing sales or obtaining loans and grants from
various financial institutions where possible. The going concern qualification
in the auditor's report increases the difficulty in meeting such goals and there
can be no assurances that such methods will prove successful. If we do not
continue as a going concern, stockholders may lose their entire investment.
We may have difficulty raising additional capital, which could deprive us of
necessary resources to grow our business and achieve our business objectives.
We expect to continue to devote capital resources to fund continued development
of content delivery and management services and maintain and grow existing
marketing capacity. In order to support the initiatives envisioned in our
business plan, we intend to raise additional funds through the sale of equity,
debt or a combination of the two. Our ability to raise additional financing
depends on many factors beyond our control, including the state of capital
markets, the market price of our common stock and the development, or prospects
for development, of competitive technology by others.
Because our common stock is listed on the over-the-counter bulletin board, many
investors may not be willing or allowed to purchase it or may demand steep
discounts. Sufficient additional financing may not be available to us or may be
available only on terms that would result in further dilution to the current
owners of our common stock. If we are unable to raise additional funds when we
need them, we may have to severely curtail our operations.
We may not successfully enhance existing or develop new products and services in
a cost-effective manner to meet customer demand in the rapidly evolving market
for voice, video and data services.
The opportunity for digital content and services delivery over the Internet and
broadband is characterized by rapidly changing technology, evolving industry
standards, changes in customer needs and frequent new service and product
introductions. We are currently focused on developing and evaluating
technologies and applications associated with voice, video and data services
over an IP network; developing applications to enhance customers' experiences;
and researching and testing technologies used to deliver broadband services,
among others. Our future success will depend, in part, on our ability to use
leading technologies effectively, to continue to develop our technical
expertise, to enhance our existing services and to develop new services that
meet changing customer needs on a timely and cost-effective basis. We may not be
able to adapt quickly enough to changing technology, customer requirements and
industry standards. If we fail to use new technologies effectively, to develop
our technical expertise and new services or to enhance existing services on a
timely basis, either internally or through arrangements with third parties, our
product and service offerings may fail to meet customer needs, which would
adversely affect our revenues.
We may not be able to successfully implement our broadband video strategy, which
could adversely affect our ability to grow or sustain revenues and our
profitability.
The ability to deliver digital content and services to local broadband
communities and online consumers is critical to the success of our business
plans. One component of our strategy for increasing our broadband customer base
and revenues is to ensure we can cost-effectively purchase wholesale broadband
access. We have done this primarily by partnering with an IP/MPLS network
services company in a revenue share agreement, thus significantly reducing our
upfront transport costs. While we believe cost reductions associated with the
delivery of our services over our partner's network will contribute positively
to overall operating profit margins, our profitability would be adversely
affected if we are unable to continue to manage and reduce recurring transport
costs associated with the delivery of our services and costs incurred to add new
broadband customers.
17
Competitive product, price or marketing pressures could cause us to lose
existing customers, or may cause us to reduce our prices for our services, which
could adversely impact our revenues.
The digital voice, video and data services industry is intensely competitive.
Some of our competitors have significantly greater financial, technical,
manufacturing, marketing and distribution resources, as well as greater
experience in the industry than we have. The particular solutions our product
lines address can also be addressed by other voice, video and data services by
our competitors. Many of these alternatives are widely accepted by potential
customers and have a long history of use. Competitors have used and may continue
to use aggressive marketing efforts, including significantly discounting the
retail price of their services to attract new subscribers. There can be no
assurance that in response to these marketing efforts we will not experience
increased churn with respect to these services. Increased churn rates indicate
customers are discontinuing services, which result in a decrease in our customer
base and adversely impacts our revenue. If any of these possibilities occur, it
may adversely impact our revenue and subscribers we are able to add. Competition
may additionally result in price reductions, reduced gross margins and loss of
market share.
Our service offerings may fail to be competitive with existing and new
competitors.
Current and prospective competitors include many large companies that have
substantially greater market presence, financial, technical, marketing and other
resources than we have. We compete directly or indirectly with the following
categories of companies:
o Content delivery networks and platforms, such as Akamai, Brightcove
and iFilm
o Telecommunications companies offering multiple types of digital
services, including video, such as SBC and Verizon
o Online content and service companies, such as Yahoo! , Google, and
Vonage, who have expanded their service offerings; and
o Cable and satellite television companies providing broadband access or
video on demand, including Comcast, Charter and Cox Communications,
DirectTV and Echostar.
Competition is likely to continue increasing, particularly as large diversified
telecommunications and media companies continue to provide voice, video and data
services. Diversified competitors may continue to bundle other content, services
and products with Internet access services, potentially placing us at a
significant competitive disadvantage.
As competition in the telecommunication market continues to intensify,
competitors may merge or form strategic alliances that would increase their
ability to compete with us for subscribers. These relationships may negatively
impact our ability to form or maintain our own strategic relationships and could
adversely affect our ability to expand our customer base.
Service interruptions or impediments could harm our business.
Harmful software programs . Our network infrastructure and the networks of our
third-party providers are vulnerable to damaging software programs, such as
computer viruses and worms. Certain of these programs have disabled the ability
of computers to access the Internet or other services we provide, requiring
users to obtain technical support. Other programs have had the potential to
damage or delete computer programs. The development and widespread dissemination
of harmful programs has the potential to seriously disrupt usage. If usage is
significantly disrupted for an extended period of time, or if the prevalence of
these programs results in decreased usage of our voice, video or data services,
our business could be materially and adversely impacted.
Security breaches . We depend on the security of our network and, in part, on
the security of the network infrastructures of our third-party service providers
and our outsourced customer support service providers. Unauthorized or
inappropriate access to, or use of, our network, computer systems and services
could potentially jeopardize the security of confidential information, including
credit card information, of our subscribers and of third parties. Consumers or
businesses may use our services to perpetuate crimes in the future. Subscribers
or third parties may assert claims of liability against us as a result of any
failure by us to prevent these activities. Although we use security measures,
there can be no assurance that the measures we take will be successfully
implemented or will be effective in preventing these activities. Further, the
security measures of our third-party providers may be inadequate. These
activities may subject us to legal claims, may adversely impact our reputation,
and may interfere with our ability to provide our services, all of which could
have a material adverse effect on our business, financial position and results
of operations.
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Natural disaster or other catastrophic event . Our operations and services
depend on the extent to which our computer equipment and the computer equipment
of our third-party providers are protected against damage from fire, flood,
earthquakes, power loss, telecommunications failures, break-ins, acts of war or
terrorism and similar events. We have technology centers in the U.S. that
contain a significant portion of our computer and electronic equipment. These
technology centers host and manage our voice, video and data services. Despite
precautions taken by us, a natural disaster or other unanticipated problem that
impacts our locations could cause interruptions in the services that we provide.
Such interruptions in our services could have a material adverse effect on our
ability to provide services to our subscribers and, in turn, on our business,
financial condition and results of operations.
Network infrastructure . The success of our business depends on the capacity,
reliability and security of our network infrastructure. We may be required to
expand and improve our infrastructure and/or purchase additional capacity from
third-party providers to meet the needs of an increasing number of subscribers
and to accommodate the expanding amount and type of information our customers
communicate. Such expansion and improvement may require substantial financial,
operational and managerial resources. We may not be able to expand or improve
our network infrastructure to meet additional demand or changing subscriber
requirements on a timely basis and at a commercially reasonable cost, or at all.
As a result, users may be unable to use our services. Inaccessibility,
interruptions or other limitations on the ability of customers to access our
services due to excessive user demand, or any failure of our network to handle
user traffic, could have a material adverse effect on our reputation, which
could cause an increase in churn and would adversely impact our revenues.
We and our technology partners may not be able to develop or protect our
respective proprietary technologies and may be required to enter licensing
arrangements on unfavorable terms.
We regard our trademarks, service marks, copyrights, patents, trade secrets,
proprietary technologies and similar intellectual property and those of our
technology partners as critical to our success. We rely on trademark, copyright
and patent law, trade secret protection, and confidentiality agreements with our
employees, customers, partners and others to protect our proprietary rights and
our technology partners employ similar practices. The efforts that both we and
our technology partners have taken to protect our proprietary rights may not be
sufficient or effective. Third parties may infringe or misappropriate either of
our copyrights, trademarks, patents and similar proprietary rights. If either we
or our technology partners are unable to protect our respective proprietary
rights from unauthorized use, our respective brand images may be harmed and our
business may suffer.
The protection of trademarks, service marks, copyrights, patents, trade secrets,
proprietary technologies and intellectual property may require the expenditure
of significant financial and managerial resources. Moreover, we cannot be
certain that the steps we or our technology partners take to protect these
assets will adequately protect our respective rights or that others will not
independently develop or otherwise acquire equivalent or superior technology or
other intellectual property rights. Such events could substantially diminish the
value of our respective technology and property, which could adversely affect
our business.
We may be accused of infringing upon the intellectual property rights of third
parties, which is costly to defend and could limit our ability to use certain
technologies in the future.
We may be subject to claims and legal proceedings regarding alleged infringement
by us of the patents, trademarks, licenses and other intellectual property
rights of third parties. Such claims, whether or not meritorious, may result in
the expenditure of significant financial and managerial resources, injunctions
against us or the imposition of damages that we must pay. We may need to obtain
licenses from third parties who allege that we have infringed their rights, but
such licenses may not be available on terms acceptable to us or at all. Any of
these could result in increases in our operating expenses or could limit or
reduce the number of our service offerings.
We may decide to initiate litigation in order to enforce our intellectual
property rights, to protect our trade secrets, or to determine the validity and
scope of our proprietary rights. Any such litigation could result in substantial
expense, may reduce our profits, and may not adequately protect our intellectual
property rights. In addition, we may be exposed to future litigation by third
parties based on claims that our products or services infringe their
intellectual property rights. Any such claim or litigation against us, whether
or not successful, could result in substantial costs and harm our reputation. In
addition, such claims or litigation could force us to do one or more of the
following:
o cease selling or using any of our products that incorporate the
challenged intellectual property, which would adversely affect our
revenue;
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o obtain a license from and/or make royalty payments to the holder of
the intellectual property right alleged to have been infringed, which
license may not be available on reasonable terms, if at all;
o divert management's attention from our business;
o redesign or, in the case of trademark claims, rename our products or
services to avoid infringing the intellectual property rights of third
parties, which may not be possible and in any event could be costly
and time-consuming.
o Even if we were to prevail, such claims or litigation could be
time-consuming and expensive to prosecute or defend, and could result
in the diversion of our management's time and attention. These
expenses and diversion of managerial resources could have a material
adverse effect on our business, prospects, financial condition, and
results of operations.
We may be unable to hire and retain sufficient qualified personnel, and the loss
of any of our key executive officers could adversely affect us.
We believe that our success will depend in large part on our ability to attract
and retain highly skilled, knowledgeable, sophisticated and qualified
managerial, professional and technical personnel. We have experienced
significant competition in attracting and retaining personnel who possess the
skills that we are seeking. As a result of this competition, we may experience a
shortage of qualified personnel. In addition, the loss of any of our key
executives could have a material adverse effect on us. Much of our success
depends upon the ability of our President and Chief Executive Officer, Paul D.
Hamm, to identify, hire and retain senior management, sales, marketing and
personnel. The loss of Mr. Hamm or the failure to attract, integrate, motivate
and retain additional key employees could adversely impact our business. We do
not have key person insurance on the life of Mr. Hamm or any other executive
officer or key employee.
Government regulations could force us to change our business practices.
Federal, state and local governments extensively regulate the cable industry and
the circuit-switched phone services industry and may begin regulating the
Internet services industry. We expect that legislative enactments, court actions
and regulatory proceedings will continue to clarify and in some cases change the
rights and obligations of cable companies and other entities under the
Communications Act and other laws, possibly in ways that we have not foreseen.
The results of these legislative, judicial and administrative actions may
materially affect our business operations.
Changes in the regulatory environment regarding the Internet and the voice,
video and data services that we provide could cause our revenues to decrease
and/or our costs to increase. Currently, we are classified as a
"telecommunications" provider, and therefore directly regulated by the state and
the FCC. We operate our services throughout the U.S. Regulatory authorities at
the state level may seek to regulate aspects of our activities as
telecommunications services, including Internet access and voice services, such
as VoIP. We are also subject to other regulations that govern businesses
generally, such as regulations related to consumer protection.
The tax treatment of activities on or relating to the Internet is currently
unsettled. A number of proposals have been made at the federal, state and local
levels and by foreign governments that could impose taxes on the online sale of
goods and services and other Internet activities. Future federal and state laws
imposing taxes on the provision of goods and services over the Internet could
make it substantially more expensive to operate our business.
Declining levels of economic activity or fluctuations in the use of our services
could negatively impact our subscriber growth rates and incremental revenue
levels.
Changes in general economic conditions that affect demand for the our voice,
video and data services could adversely affect our revenues. While the number of
subscribers has been rising, the infrastructure may not expand fast enough to
meet the increased levels of demand. If use of the voice, video and data
services as a medium for commerce declines or grows at a slower rate than we
anticipate, our revenues could be lower than expected and our business could be
harmed.
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We may face risks as we expand our business into international markets.
We currently may explore opportunities to offer our products in foreign markets.
If so, we have limited experience in developing and marketing our services
internationally, and we may not be able to successfully execute our business
model in markets outside the United States. We may face a number of risks
inherent in doing business in international markets, including the following:
o changing regulatory requirements;
o fluctuations in the exchange rate for the United States dollar;
o the availability of export licenses;
o potentially adverse tax consequences;
o political and economic instability;
o changes in diplomatic and trade relationships;
o difficulties in staffing and managing foreign operations, tariffs and
other trade barriers;
o complex foreign laws and treaties;
o changing economic conditions;
o difficulty of collecting foreign account receivables;
o exposure to different legal standards, particularly with respect to
intellectual property and distribution of products;
In addition, we would be subject to the Foreign Corrupt Practices Act, which
prohibits us from making payments to government officials and others in order to
influence the granting of contracts we may be seeking. Our non-U.S. competitors
are not subject to this law and this may give them a competitive advantage over
us.
To the extent that international operations represent a significant portion of
our business in the future, our business could suffer if any of these risks
occur.
Failure to achieve and maintain effective internal controls in accordance with
Section 404 of the Sarbanes-Oxley Act could have a material adverse effect on
our business and stock price.
Pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, beginning with our
Annual Report on Form 10-KSB for the fiscal year ending December 31, 2006, we
will be required to furnish a report by our management on our internal control
over financial reporting. The internal control report must contain (i) a
statement of management's responsibility for establishing and maintaining
adequate internal control over financial reporting, (ii) a statement identifying
the framework used by management to conduct the required evaluation of the
effectiveness of our internal control over financial reporting, (iii)
management's assessment of the effectiveness of our internal control over
financial reporting as of the end of our most recent fiscal year, including a
statement as to whether or not internal control over financial reporting is
effective, and (iv) a statement that the Company's independent auditors have
issued an attestation report on management's assessment of internal control over
financial reporting.
In order to achieve compliance with Section 404 of the Act within the prescribed
period, we will need to engage in a process to document and evaluate our
internal control over financial reporting, which will be both costly and
challenging. In this regard, management will need to dedicate internal
resources, engage outside consultants and adopt a detailed work plan to (i)
assess and document the adequacy of internal control over financial reporting,
(ii) take steps to improve control processes where appropriate, (iii) validate
through testing that controls are functioning as documented and (iv) implement a
continuous reporting and improvement process for internal control over financial
reporting. We can provide no assurance as to our, or our independent auditors',
conclusions at December 31, 2006 with respect to the effectiveness of our
internal control over financial reporting under Section 404 of the Act. There is
a risk that neither we nor our independent auditors will be able to conclude at
December 31, 2006 that our internal controls over financial reporting are
effective as required by Section 404 of the Act.
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During the course of our testing we may identify deficiencies which we may not
be able to remediate in time to meet the deadline imposed by the Sarbanes-Oxley
Act for compliance with the requirements of Section 404. In addition, if we fail
to achieve and maintain the adequacy of our internal controls, as such standards
are modified, supplemented or amended from time to time, we may not be able to
ensure that we can conclude on an ongoing basis that we have effective internal
controls over financial reporting in accordance with Section 404 of the
Sarbanes-Oxley Act. Moreover, effective internal controls, particularly those
related to revenue recognition, are necessary for us to produce reliable
financial reports and are important to helping prevent financial fraud. If we
cannot provide reliable financial reports or prevent fraud, our business and
operating results could be harmed, investors could lose confidence in our
reported financial information, and the trading price of our stock could drop
significantly.
RISKS RELATED TO OUR OUTSTANDING SECURITIES
The sale of the shares of our common stock acquired in private placements could
cause the price of our common stock to decline.
On February 22, 2005, we completed a financing in which we issued a total of
$1.425 million principal amount of 8% senior secured convertible notes due
February 22, 2007. The financing further included warrants to purchase an
aggregate of 1,597,529 shares of our common stock and two additional investment
rights entitling the holders to purchase from us up to an additional $2.85
million of 8% senior secured convertible notes and warrants to purchase an
aggregate of 3,195,058 shares of our common stock. As required under the terms
of those transactions, we are required to file a registration statement with the
United States Securities and Exchange Commission under which the investors may
resell to the public common stock acquired upon the conversion of the Notes, as
well as common stock acquired upon the exercise of the warrants and other
investment rights held by them.
The selling stockholders under the registration statement may sell none, some or
all of the shares of common stock acquired from us, as well as common stock
acquired upon the exercise of the warrants and investment rights held by them.
We have no way of knowing whether the selling stockholders will sell the shares
covered by the registration statement. Depending upon market liquidity at the
time, a sale of shares covered by the registration statement at any given time
could cause the trading price of our common stock to decline. The sale of a
substantial number of shares of our common stock under this prospectus, or
anticipation of such sales, could make it more difficult for us to sell equity
or equity-related securities in the future at a time and at a price that we
might otherwise wish to effect sales.
The large number of shares underlying the derivative securities we issued in our
recent private placement may be available for future sale and the sale of these
shares may depress the market price of our common stock.
The issuance of common stock to the investors in our recent private placement
upon the conversion or exercise of the derivative securities that they hold may
cause downward pricing pressure and will dilute our stockholders' percentage of
ownership. The convertible promissory notes sold in the offering are convertible
at any time at the option of the holder into shares of our common stock at a
conversion price of $0.892 per share, which was 70% of the average closing
market price of the common stock on the over-the-counter bulletin board for the
20 trading days prior to the closing of the transaction. In addition, the sale
of the common stock issued upon the exercise of the related warrants and
additional investment rights issued to the investors will also place downward
pricing pressure on our common stock.
We also expect to pay 8% annual interest on the convertible promissory notes,
payable semi-annually in cash or at our option (subject to the satisfaction of
certain conditions) in shares of our common stock valued at 85% of the volume
weighted average price of a common stock for the 20 trading days prior to the
payment date. This will further dilute our stockholders ownership and put
additional downward pricing pressure on the common stock.
We have increased the amount of our secured indebtedness as a result of our
recent private placement of convertible secured promissory notes.
All of our material assets have been pledged as collateral for the $1,425,000 in
principal amount of the convertible promissory notes that we sold in our recent
private placement. In addition to the security interest in our assets, the
promissory notes carry substantial covenants that impose significant
requirements on us, including, among others, requirements that:
o we may be required to pay principal and other charges on the
promissory notes when due and we pay interest semi-annually in arrears
beginning June 30, 2005;
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o while the promissory notes are outstanding, if we issue equity or
equity linked securities at a price lower than the conversion price
then the conversion price of the promissory notes will be reduced to
the same price. If we issue any variable priced equity securities or
variable price equity linked securities, then the conversion price of
the promissory notes will be reduced to the lowest issue price applied
to those securities;
o we keep reserved out of our authorized shares of common stock
sufficient shares to satisfy our obligation to issue shares on
conversion of the promissory notes and the exercise of the related
warrants and other investment rights issued in connection with the
sale of the promissory notes;
o we did not achieve revenues of at least $4,000,000 for calendar year
2005, therefore the conversion price of the promissory notes will be
adjusted to 85% of the volume weighted average closing market price of
the common stock on the over-the-counter bulletin board for the 20
trading days prior to six-month anniversary of the release of the
calendar 2005 financial statements, but in no event higher than the
initial conversion price of $.892. The conversion price is also
subject to adjustment upon the occurrence of certain specified events,
including stock dividends and stock splits, pro rata distributions of
equity securities, evidences of indebtedness, rights or warrants to
purchase common stock or cash or any other asset, mergers or
consolidations, or certain issuances of common stock at a price below
the initial conversion price of $.892 per share, subject to adjustment
as set forth above;
o we shall not, directly or indirectly, (i) redeem, purchase or
otherwise acquire any capital stock or set aside any monies for such a
redemption, purchase or other acquisition or (ii) issue any floating
price security with a floor price below the conversion price.
Our ability to comply with these provisions may be affected by changes in our
business condition or results of our operations, or other events beyond our
control. The breach of any of these covenants could result in a default under
the promissory notes, permitting the holders of the promissory notes to
accelerate their maturity and to sell the assets securing them. Such actions by
the holders of the promissory notes could cause us to cease operations or seek
bankruptcy protection.
If we are required for any reason to repay the promissory notes, we would be
required to deplete our working capital, if available, or raise additional
funds. Our failure to repay the promissory notes, if required, could result in
legal action against us, which could require the sale of substantial assets.
The promissory notes are due and payable on February 22, 2007 unless sooner
converted into shares of our common stock. In addition, any event of default as
described in the promissory notes could require the early repayment of the notes
including a default interest rate of 18% on the outstanding principal balance of
the promissory notes if the default is not cured with the specified grace
period. We anticipate that the full amount of the promissory notes, together
with accrued interest will be converted into shares of our common stock, in
accordance with the terms of the promissory note. If we are required to repay
the promissory notes, we would be required to use our limited working capital
and raise additional funds. If we were unable to repay the promissory notes when
required, the promissory noteholders could commence legal action against us and
foreclose on all of our assets to recover the amounts due. Any such action would
require us to curtail or cease operations.
There may be a volatility of our stock price.
The trading price of our common stock on the over-the-counter bulletin board has
been and continues to be subject to wide fluctuations. The trading price of our
common stock has closed as low as $0.05 per share and as high as $1.61 per share
in the last twelve months. The market price of the common stock could be subject
to significant fluctuations in response to various factors and events,
including, among other things, the depth and liquidity of the trading market of
the common stock, quarterly variations in actual or anticipated operating
results, growth rates, changes in estimates by analysts, market conditions in
the industry, announcements by competitors, regulatory actions and general
economic conditions. In addition, the stock market from time to time experienced
significant price and volume fluctuations, which may be unrelated to the
operating performance of particular companies. As a result of the foregoing, our
operating results and prospects from time to time may be below the expectations
of public market analysts and investors. Any such event would likely result in a
material adverse effect on the price of the common stock.
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We do not intend to pay cash dividends on our common stock in the foreseeable
future .
We currently anticipate that we will retain all future earnings, if any, to
finance the growth and development of our business and do not anticipate paying
cash dividends on our common stock in the foreseeable future. Any payment of
cash dividends will depend upon our financial condition, capital requirements,
earnings and other factors deemed relevant by our board of directors.
Our common stock is subject to the "penny stock" rules of the SEC and the
trading market in our securities is limited, which makes transactions in our
stock cumbersome and may reduce the value of an investment in our stock .
The Securities and Exchange Commission has adopted Rule 15g-9, which establishes
the definition of a "penny stock," for the purposes relevant to us, as any
equity security that has a market price of less than $5.00 per share or with an
exercise price of less than $5.00 per share, subject to certain exceptions. For
any transaction involving a penny stock, unless exempt, the rules require a
broker or dealer to approve a person's account for transactions in penny stocks
and that the broker or dealer receive from the investor a written agreement to
the transaction, setting forth the identity and quantity of the penny stock to
be purchased.
In order to approve a person's account for transactions in penny stocks, the
broker or dealer must obtain financial information and investment experience
objectives of the person and make a reasonable determination that the
transactions in penny stocks are suitable for that person and that the person
has sufficient knowledge and experience in financial matters to be capable of
evaluating the risks of transactions in penny stocks.
The broker or dealer must also deliver, prior to any transaction in a penny
stock, a disclosure schedule prescribed by the Commission relating to the penny
stock market, which, in highlight form sets forth the basis on which the broker
or dealer made the suitability determination and that the broker or dealer
received a signed, written agreement from the investor prior to the transaction.
Generally, brokers may be less willing to execute transactions in securities
subject to the "penny stock" rules. This may make it more difficult for
investors to dispose of our common stock and cause a decline in the market value
of our stock.
If we fail to remain current on our reporting requirements, we could be removed
from the over-the-counter bulletin board, which would limit the ability of
broker-dealers to sell our securities and the ability of stockholders to sell
their securities in the secondary market.
Companies trading on the over-the-counter bulletin board, such as us, must be
reporting issuers under Section 12 of the Securities Exchange Act of 1934, as
amended, and must be current in their reports under Section 13 in order to
maintain price quotation privileges on the over-the-counter bulletin board.
If we fail to remain current on our reporting requirements, we could be removed
from the over-the-counter bulletin board. As a result, the market liquidity for
our securities could be severely affected by limiting the ability of
broker-dealers to sell our securities and the ability of stockholders to sell
their securities in the secondary market
Stock prices of technology companies have declined precipitously at times in the
past and the trading price of our common stock is likely to be volatile, which
could result in substantial losses to investors.
The trading price of our common stock has fluctuated significantly in the past
and could continue to be volatile in response to factors including the
following, many of which are beyond our control:
o variations in our operating results;
o announcements of technological innovations or new services by us or
our competitors;
o changes in expectations of our future financial performance, including
financial estimates by securities analysts and investors;
24
o our failure to meet analysts' expectations;
o changes in operating and stock price performance of other technology
companies similar to us;
o conditions or trends in the technology industry;
o additions or departures of key personnel; and
o future sales of our common stock.
Domestic and international stock markets often experience significant price and
volume fluctuations that are unrelated to the operating performance of companies
with securities trading in those markets. These fluctuations, as well as
political events, terrorist attacks, threatened or actual war, and general
economic conditions unrelated to our performance, may adversely affect the price
of our common stock. In the past, securities holders of other companies often
have initiated securities class action litigation against those companies
following periods of volatility in the market price of those companies'
securities. If the market price of our stock fluctuates and our stockholders
initiate this type of litigation, we could incur substantial costs and
experience a diversion of our management's attention and resources, regardless
of the outcome. This could materially and adversely affect our business,
prospects, financial condition, and results of operations.
Provisions in our corporate charter and under Delaware law are favorable to our
directors.
Pursuant to our certificate of incorporation, members of our management and
board of directors will have no liability for violations of their fiduciary duty
of care as officers and directors, except in limited circumstances. This means
that you may be unable to prevail in a legal action against our officers or
directors even if you believe they have breached their fiduciary duty of care.
In addition, our certificate of incorporation allows us to indemnify our
officers and directors from and against any and all expenses or liabilities
arising from or in connection with their serving in such capacities with us.
This means that if you were able to enforce an action against our directors or
officers, in all likelihood we would be required to pay any expenses they
incurred in defending the lawsuit and any judgment or settlement they otherwise
would be required to pay.
Certain provisions of Delaware General Corporation Law and in our charter, as
well as our current stockholder base may prevent or delay a change of control of
our company.
Under the Delaware General Corporation Law, which we are subject to, it will be
more difficult for a third party to take control of our company and may limit
the price some investors are willing to pay for shares of our common stock.
Furthermore, our certificate of incorporation authorizes the issuance of
preferred stock without a vote or other stockholder approval. Finally, a
majority of our outstanding common stock is held by insiders. Without a
disparate stockholder base or a fluid aggregation of stockholders, it will be
more difficult for a third-party to acquire our company without the consent of
the insiders.
RISKS RELATED TO THE INTERNET
We may not be able to adapt as the Internet market changes.
Our failure to respond in a timely manner to changing market conditions or
client requirements could have a material adverse effect on our business,
prospects, financial condition, and results of operations. The Internet is
characterized by:
o rapid technological change;
o changes in advertiser and user requirements and preferences;
25
o frequent new product and service introductions embodying new
technologies; and
o the emergence of new industry standards and practices that could
render our existing service offerings, technology, and hardware and
software infrastructure obsolete.
In order to compete successfully in the future, we must
o enhance our existing services and develop new services and technology
that address the increasingly sophisticated and varied needs of our
prospective or current customers;
o license, develop or acquire technologies useful in our business on a
timely basis; and
o respond to technological advances and emerging industry standards and
practices on a cost-effective and timely basis.
Our future success may depend on continued growth in the use of the Internet and
Internet -based services.
Because the Internet is a rapidly evolving industry, the ultimate demand and
market acceptance for our services will be subject to a high level of
uncertainty. Significant issues concerning the commercial use of the Internet
and online service technologies, including security, reliability, cost, ease of
use, and quality of service, remain unresolved and may inhibit the growth of
Internet business solutions that use these technologies. In addition, the
Internet or other online services could lose their viability due to delays in
the development or adoption of new standards and protocols required to handle
increased levels of Internet activity, or due to increased governmental
regulation. Our business, prospects, financial condition, and results of
operations would be materially and adversely affected if the use of the Internet
and other online services does not continue to grow or grows more slowly than we
expect.
We may be required to keep pace with rapid technological change in the Internet
industry.
In order to remain competitive, we will be required continually to enhance and
improve the functionality and features of our existing services, which could
require us to invest significant capital. If our competitors introduce new
products and services embodying new technologies, or if new industry standards
and practices emerge, our existing services, technologies, and systems may
become obsolete. We may not have the funds or technical know-how to upgrade our
services, technology, and systems. If we face material delays in introducing new
services, products, and enhancements, our customers may forego the use of our
services and select those of our competitors, in which event our business,
prospects, financial condition and results of operations could be materially and
adversely affected.
Regulation of the Internet and Internet-based services may adversely affect our
business.
Due to the increasing popularity and use of the Internet and online services,
federal, state, local, and foreign governments may adopt laws and regulations,
or amend existing laws and regulations, with respect to the Internet and other
online services. These laws and regulations may affect issues such as user
privacy, pricing, content, taxation, copyrights, distribution, and quality of
products and services. The laws governing the Internet remain largely unsettled,
even in areas where legislation has been enacted. It may take years to determine
whether and how existing laws, such as those governing intellectual property,
privacy, libel, and taxation, apply to the Internet. In addition, the growth and
development of the market for electronic commerce may prompt calls for more
stringent consumer protection laws, both in the United States and abroad, that
may impose additional burdens on companies conducting business via the Internet.
Any new legislation could hinder the growth in use of the Internet generally or
in our industry and could impose additional burdens on companies conducting
business online, which could, in turn, decrease the demand for our services,
increase our cost of doing business, or otherwise have a material adverse effect
on our business, prospects, financial condition, and results of operations.
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Our business could be negatively impacted if the security of the Internet
becomes compromised.
To the extent that our activities involve the storage and transmission of
proprietary information about our customers, security breaches could damage our
reputation and expose us to a risk of loss or litigation and possible liability.
We may be required to expend significant capital and other resources to protect
against security breaches or to minimize problems caused by security breaches.
Our security measures may not prevent security breaches. Our failure to prevent
these security breaches or a misappropriation of proprietary information may
have a material adverse effect on our business, prospects, financial condition,
and results of operations.
Our technical systems could be vulnerable to online security risks, service
interruptions or damage to our systems.
Our systems and operations may be vulnerable to damage or interruption from
fire, floods, power loss, telecommunications failures, break-ins, sabotage,
computer viruses, penetration of our network by unauthorized computer users and
"hackers," natural disaster, and similar events. Preventing, alleviating, or
eliminating computer viruses and other service-related or security problems may
require interruptions, delays or cessation of service. We may need to expend
significant resources protecting against the threat of security breaches or
alleviating potential or actual service interruptions. The occurrence of such
unanticipated problems or security breaches could cause material interruptions
or delays in our business, loss of data, or misappropriation of proprietary or
customer-related information or could render us unable to provide services to
our customers for an indeterminate length of time. The occurrence of any or all
of these events could materially and adversely affect our business, prospects,
financial condition, and results of operations.
If we are sued for content distributed through, or linked to by, our website or
those of our customers, we may be required to spend substantial resources to
defend ourselves and could be required to pay monetary damages.
We aggregate and distribute third-party data and other content over the
Internet. In addition, third-party websites are accessible through our website
or those of our customers or affiliates. As a result, we could be subject to
legal claims for defamation, negligence, intellectual property infringement, and
product or service liability. Other claims may be based on errors or false or
misleading information provided on or through our website or websites of our
customers or affiliates. Other claims may be based on links to sexually explicit
websites and sexually explicit advertisements. We may need to expend substantial
resources to investigate and defend these claims, regardless of whether we
successfully defend against them. In addition, implementing measures to reduce
our exposure to this liability may require us to spend substantial resources and
limit the attractiveness of our content to users.
ITEM 7. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
TABLE OF CONTENTS Page
REPORTS OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRMS F-1
CONSOLIDATED FINANCIAL STATEMENTS:
Consolidated Balance Sheets at December 31, 2005 and 2004 F-3
Consolidated Statements of Operations for the years
ended December 31, 2005 and December 31, 2004 F-4
Consolidated Statements of Stockholders' Deficit for
the years ended December 31, 2005 and December
31, 2004 F-5
Consolidated Statements of Cash Flows for the years
ended December 31, 2005 and December 31, 2004 F-6
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS F-7
27
================================================================================
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors
Endavo Media and Communications, Inc.
Atlanta, Georgia
We have audited the accompanying consolidated balance sheet of Endavo Media and
Communications, Inc. and subsidiaries as of December 31, 2005 and the related
consolidated statements of operations, changes in stockholders' equity (deficit)
and cash flows for the year then ended. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our 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. The Company has determined that it
is not required to have, nor were we engaged to perform, an audit of its
internal control over financial reporting. Our audit included consideration of
internal control over financial reporting as a basis for designing audit
procedures that are appropriate in the circumstances, but not for the purpose of
expressing an opinion on the effectiveness of the Company's internal control
over financial reporting. Accordingly, we express no such opinion. 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 financial position of Endavo Media and
Communications, Inc and subsidiaries as of December 31, 2005, and the results of
their operations and their cash flows for the year then ended in conformity with
U.S. generally accepted accounting principles.
The accompanying consolidated financial statements have been prepared assuming
that the Company will continue as a going concern. As discussed in Note 3 to the
financial statements, the Company has limited revenue, has incurred substantial
losses from operations and has working capital and stockholders deficits. These
factors raise substantial doubt about the Company's ability to continue as a
going concern. Management's plans with regard to these matters are described in
Note 3. The accompanying financial statements do not include any adjustments
that might result from the outcome of this uncertainty.
Ronald N. Silberstein, CPA, PLLC
Farmington Hills, Michigan
April 7, 2006
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors
Endavo Media and Communications, Inc.
Salt Lake City, Utah
We have audited the accompanying consolidated balance sheet of Endavo Media and
Communications, Inc. and subsidiaries as of December 31, 2004 and the related
consolidated statements of operations, changes in stockholders' equity (deficit)
and cash flows for the year then ended. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our 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. The Company has determined that it
is not required to have, nor were we engaged to perform, an audit of its
internal control over financial reporting. Our audit included consideration of
internal control over financial reporting as a basis for designing audit
procedures that are appropriate in the circumstances, but not for the purpose of
expressing an opinion on the effectiveness of the Company's internal control
over financial reporting. Accordingly, we express no such opinion. 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 financial position of Endavo Media and
Communications, Inc and subsidiaries as of December 31, 2004, and the results of
their operations and their cash flows for the year then ended in conformity with
U.S. generally accepted accounting principles.
The accompanying consolidated financial statements have been prepared assuming
that the Company will continue as a going concern. As discussed in Note 3 to the
financial statements, the Company has limited revenue, has incurred substantial
losses from operations and has working capital and stockholders deficits. These
factors raise substantial doubt about the Company's ability to continue as a
going concern. Management's plans with regard to these matters are described in
Note 3. The accompanying financial statements do not include any adjustments
that might result from the outcome of this uncertainty.
Hein & Associates LLP
Phoenix, Arizona
April 9, 2005
F-2
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Consolidated Balance Sheets
December 31,
------------
Assets 2005 2004
------ ------------ ------------
Current assets:
Cash $ 5,000 $ 1,000
Accounts receivable, net of allowance for doubtful
accounts of $0 and $11,000, respectively -- 31,000
Prepaid expenses -- 3,000
Deposits 16,000 18,000
------------ ------------
Total current assets 21,000 53,000
Property and equipment, net 297,000 153,000
Asset held for sale 45,000 45,000
------------ ------------
Total Assets $ 363,000 $ 251,000
============ ============
Liabilities and Stockholders' Deficit
-------------------------------------
Current liabilities:
Accounts payable $ 854,000 $ 651,000
Accrued liabilities 888,000 460,000
Deferred revenue -- 321,000
Notes payable including related parties 1,039,000 1,078,000
------------ ------------
Total current liabilities 2,781,000 2,510,000
Commitments and contingencies (Notes 3,9, and 13)
Stockholders' deficit:
Preferred stock, $.001 par value; 5,000,000 shares
Authorized. Of the amount authorized 4,500,000 shares have
been designated as Series A, and 100,000 shares as Series B
There are 3,821,197 shares of Series A issued and outstanding
The liquidation preference of the Series A is $4,000 4,000 4,000
Common stock, $.001 par value, voting, 100,000,000
shares authorized, 21,259,300 and 9,517,303
shares issued and outstanding, respectively 21,000 10,000
Additional paid-in capital 18,717,000 15,197,000
Deferred compensation -- (688,000)
Subscriptions receivable -- (2,000)
Accumulated deficit (21,160,000) (16,780,000)
------------ ------------
(2,418,000) (2,259,000)
------------ ------------
Total liabilities and stockholders' deficit $ 363,000 $ 251,000
============ ============
See accompanying notes to consolidated financial statements.
F-3
==============================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Consolidated Statements of Operations
Years Ended December 31,
----------------------------
2005 2004
------------ ------------
Total revenues $ 432,000 $ 178,000
Cost of sales (131,000) (419,000)
Selling, general, and administrative expense (2,838,000) (3,496,000)
Impairment of property and equipment 0 (417,000)
------------ ------------
Loss from operations (2,537,000) (4,154,000)
Other income (expense) (3,000) 1,000
Interest expense (1,840,000) (1,159,000)
------------ ------------
Net loss (4,380,000) (5,303,000)
Imputed preferred stock dividend (7,566,000) (1,891,000)
------------ ------------
Net loss attributable to common shareholders $(11,946,000) $ (7,194,000)
------------ ------------
Net loss per common share - basic and diluted $ (0.83) $ (2.84)
------------ ------------
Weighted average shares - basic and diluted 14,438,267 2,532,939
------------ ------------
See accompanying notes to consolidated financial statements
F-4
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Consolidated Statement of Stockholders' Deficit
Years Ended December 31, 2005 and 2004
Preferred Stock Common Stock
--------------------------- ---------------------------
Shares Amount Shares Amount
------------ ------------ ------------ ------------
Balance January 1, 2004 -- $ -- 491,206 $ 1,000
Conversion of notes payable
to common stock -- -- 3,511,363 3,000
Conversion of common stock
to preferred stock 3,821,197 4,000 (2,292,718) (2,000)
Issuance of common stock
for:
Cash -- -- 48,000 --
Cash-Warrants
Exercised -- -- 2,006,892 2,000
Services -- -- 5,752,560 6,000
Deferred Compensation
relating to issuance of
warrants -- -- -- --
Consultant stock
subscriptions satisfied
through services -- -- -- --
Compensation cost related
to issuance of options to
officers -- -- -- --
Amortization of deferred
compensation -- -- -- --
Preferential conversion
feature associated with
long-term debt -- -- -- --
Net loss -- -- -- --
------------ ------------ ------------ ------------
Balance December 31, 2004 3,821,197 $ 4,000 9,517,303 $ 10,000
Issuance of common stock
for:
Cash (common stock purchase
or purchase warrant
exercise) -- -- 7,949,291 7,000
Services -- -- 514,325 1,000
Conversion of notes payable
to common stock -- -- 3,278,381 3,000
Amortization of deferred
compensation and
subscriptions receivable -- -- -- --
Preferential conversion
feature associated with
long-term debt -- -- -- --
------------ ------------ ------------ ------------
Balance December 31, 2005 3,821,197 $ 4,000 21,259,300 $ 21,000
============ ============ ============ ============
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Consolidated Statement of Stockholders' Deficit
Years Ended December 31, 2005 and 2004
(Continued)
Additional
Paid-in Deferred Subscriptions Accumulated
Capital Compensation Receivable Deficit
------------ ------------ ------------ ------------
Balance January 1, 2004 $ 10,484,000 $ (97,000) $ (28,000) $(11,477,000)
Conversion of notes payable
to common stock 1,691,000 -- -- --
Conversion of common stock
to preferred stock (2,000) -- -- --
Issuance of common stock
for:
Cash 30,000 -- (8,000) --
Cash-Warrants
Exercised 352,000 -- -- --
Services 1,342,000 (1,348,000) -- --
Deferred Compensation
relating to issuance of
warrants 401,000 (401,000) -- --
Consultant stock
subscriptions satisfied
through services -- -- 34,000 --
Compensation cost related
to issuance of options to
officers 458,000 -- -- --
Amortization of deferred
compensation 1,158,000 -- -- --
Preferential conversion
feature associated with
long-term debt 441,000 -- -- --
Net loss -- -- -- (5,303,000)
------------ ------------ ------------ ------------
Balance December 31, 2004 $ 15,197,000 $ (688,000) $ (2,000) $(16,780,000)
Issuance of common stock
for:
Cash (common stock purchase
or purchase warrant
exercise) 1,872,000 -- -- --
Services 130,000 -- -- --
Conversion of notes payable
to common stock 113,000 -- -- --
Amortization of deferred
compensation and
subscriptions receivable -- 688,000 2,000 --
Preferential conversion
feature associated with
long-term debt 1,405,000 -- -- --
------------ ------------ ------------ ------------
Balance December 31, 2005 $ 18,717,000 $ -- $ -- $(21,160,000)
============ ============ ============ ============
See accompanying notes to consolidated financial statements.
F-5
==========================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Consolidated Statement of Cash Flows
Years Ended December 31,
--------------------------
2005 2004
----------- -----------
Cash flows from operating activities:
Net loss $(4,380,000) $(5,303,000)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization 78,000 158,000
Loss on sale of fixed assets -- 12,000
Impairment of fixed assets -- 417,000
Stock and options issued for services 579,000 458,000
Interest expense converted to common stock -- 197,000
Interest expense and fees added to note balance -- 29,000
Amortization of deferred compensation 688,000 1,158,000
Stock subscription satisfied with services -- 34,000
Amortization of discount on long-term debt 605,000 678,000
Gain on settlement (9,000) --
Bad debt expense -- 35,000
Decrease (increase) in:
Accounts receivable 31,000 3,000
Prepaid expense 3,000 1,000
Deposits 2,000 (10,000)
Increase (decrease) in:
Accounts payable 203,000 214,000
Accrued liabilities 428,000 156,000
Deferred revenue (321,000) 85,000
----------- -----------
Net cash used in operating activities (2,093,000) (1,678,000)
----------- -----------
Cash flows used in investing activities:
Purchase of property and equipment (222,000) (236,000)
Cash flows from financing activities:
Proceeds from issuance of common stock and exercise of warrants 865,000 376,000
Proceeds from related party note 57,000 1,397,000
Payments on related party convertible notes payable (8,000) (40,000)
Proceeds from note payable 1,450,000 18,000
Payments on note payable (45,000) --
Payments on related party convertible notes payable -- (40,000)
Net cash provided by financing activities 2,319,000 1,751,000
----------- -----------
Net increase (decrease) in cash and cash equivalents 4,000 (163,000)
Cash and cash equivalents at beginning of period 1,000 164,000
----------- -----------
Cash and cash equivalents at end of period $ 5,000 $ 1,000
=========== ===========
See accompanying notes to consolidated financial statements
F-6
============================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
December 31, 2005 and 2004
--------------------------------------------------------------------------------
1. Organization and Description of Business
Endavo Media and Communications, Inc. and subsidiaries (collectively referred to
as the "Company") provides digital content distribution and management solutions
for content owners seeking to distribute online and over broadband, or Internet
Protocol, networks. Prior to September 2005, the Company integrated broadband
services, including voice, video, and data services to residential customers
through IP based networks. The Company, formed in December 1999, relocated to
Atlanta, Georgia in December 2005 from Salt Lake City, Utah. The Company was
formerly known as CeriStar Inc.
2. Summary of Significant Accounting Policies
Principles of Consolidation
The financial statements reflect the consolidated results of Endavo Media and
Communications and its wholly owned subsidiaries Susquina, Inc. and New Planet
Resources, Inc. All material inter-company transactions have been eliminated in
the consolidation.
Reverse Stock Split
In the third quarter of 2004, the Company completed a reverse stock split
whereby the shareholders received 1 share of stock for every 16 that they
previously owned.
Concentration of Credit Risk
Financial instruments which potentially subject the Company to concentration of
credit risk consist primarily of trade receivables. In the normal course of
business, the Company provides on-going credit evaluations of its customers and
maintains allowances for possible losses.
The Company maintains its cash in bank deposit accounts which, at times, may
exceed federally insured limits. The Company has not experienced any losses in
such accounts and does not believe it is exposed to any significant credit risk
on cash and cash equivalents. The Company also maintains a bank account in the
Cayman Islands that is not federally insured.
Cash and Cash Equivalents
Cash includes all cash and highly liquid investments with original maturities of
three months or less. Property and Equipment Property and equipment are recorded
at cost less accumulated depreciation. Depreciation and amortization on property
and equipment are determined using the straight-line method over the three to
five year estimated useful lives of the assets.
F-7
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
2. Summary of Significant Accounting Policies Continued
Impairment of Long-Lived Assets
The Company reviews its long-lived assets for impairment when events or changes
in circumstances indicate that the book value of an asset may not be
recoverable. The Company evaluates, at each balance sheet date, whether events
and circumstances have occurred which indicate possible impairment. The Company
uses an estimate of future undiscounted net cash flows of the related asset or
group of assets over the estimated remaining life in measuring whether the
assets are recoverable. If it is determined that an impairment loss has occurred
based on expected cash flows, such loss is recognized in the statement of
operations. In the fourth quarter of 2004 the Company analyzed its expected cash
flows related to its installed equipment, and determined that the cash flows
would not be sufficient to recover its investment in those assets, resulting in
an impairment of those assets. The company also impaired an asset that is being
held for sale to its estimated net realizable value. The total amount impaired
was $417,000 and was recorded in operating expenses.
Revenue Recognition
Revenue is recognized when a valid contract or purchase order has been executed
or received, services have been performed or product has been delivered, the
selling price is fixed or determinable, and collectibility is reasonably
assured. Payments received prior to performance are recorded as deferred revenue
and amortized over the estimated service period.
Income Taxes
Deferred taxes are computed using the asset and liability method. Under the
asset and liability method, deferred tax assets and liabilities are recognized
for future tax consequences attributable to differences between the financial
statement carrying amounts of existing assets and liabilities and their
respective tax bases. Deferred tax assets and liabilities are measured using
enacted tax rates expected to apply to taxable income in the years in which
those temporary differences are expected to be recovered or settled. The effect
on deferred tax assets and liabilities of a change in tax rates is recognized in
income in the period that includes the enactment date. Deferred tax assets are
not recognized unless it is more likely than not that the asset will be realized
in future years.
F-8
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
2. Summary of Significant Accounting Policies Continued
Earnings per Common and Common Equivalent Share
The computation of basic earnings per common share is computed using the
weighted average number of common shares outstanding during the year. The
computation of diluted earnings per common share is based on the weighted
average number of shares outstanding during the year plus common stock
equivalents which would arise from the exercise of warrants outstanding using
the treasury stock method and the average market price per share during the
year. Options, warrants, convertible debt and convertible preferred stock which
if exercised or converted would require the company to issue 64,041,396 and
39,798,385 common stock equivalents are not included in the diluted earnings per
share calculation for 2005 and 2004, respectively, since their effect is
anti-dilutive.
Use of Estimates
The preparation of financial statements in conformity with accounting principles
generally accepted in the United States of America requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting periods. Actual results could differ from those estimates.
Significant estimates include the cash flow projections used for the impairment
tests, the assumption underlying estimate of the period used to amortize
deferred revenue and the assumptions used to value the stock options issued to
non-employees. It is reasonable possible that these estimates may change in the
near term and that such as change may be material.
Stock-Based Compensation
The Company has adopted the disclosure only provisions of Statement of Financial
Accounting Standards (SFAS) No. 123, "Accounting for Stock-Based Compensation."
Accordingly, in accordance with APB Opinion No. 25, no compensation is
recognized for options granted to employees unless those options are subject to
variable accounting or they are issued with an exercise price less than market.
During the year ended December 31, 2005, the Company issued 1,545,000 options to
Officers and employees of the Company to purchase the Company's common stock at
exercise prices ranging from $0.08 to $1.22 per share. These options expire in
10 years from issue date and were vested as of December 31, 2005. During the
year ended December 31, 2004, the Company issued 1,100,000 options to Officers
of the Company to purchase the Company's common stock at exercise prices of $.05
to $.60 per share. These options expire in 10 years from issue date and were
vested as of December 31, 2004.
Because the exercise price of these options would not be decreased
proportionately if the Company has a reverse stock split, they were accounted
for as though the terms of the options were variable, resulting in a non-cash
expense of $458,000 in 2004, $453,000 of which was reversed during 2005.
F-9
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
2. Summary of Significant Accounting Policies Continued
Stock-Based Compensation - Continued
Had compensation cost for these options been determined based upon the fair
value at the grant date consistent with the methodology prescribed under SFAS
No. 123, the Company's net earnings would have changed as set forth in the table
below:
Years Ended December 31,
----------------------------
2005 2004
------------ ------------
Net loss - attributable to common shareholders $(11,946,000) $ (7,194,000)
as reported
Add: Stock-based employee compensation
expense included in reported net loss,
net of related tax effects -- 458,000
Deduct: Total stock-based employee
compensation expense determined under fair
value based method for all awards, net of related tax effects -- (605,000)
------------ ------------
Net loss - attributable to common shareholders
pro forma $(11,946,000) $ (7,341,000)
Loss per share - attributable to common
shareholders as reported $ (0.83) $ (2.84)
============ ============
Loss per share - attributable to common shareholders
pro forma $ (0.83) $ (2.89)
============ ============
These options were valued at the date of grant with the total calculated pro
forma expense reflected above, as all options are fully vested.
The fair value of each warrant grant is estimated on the date of grant using the
Black-Scholes option pricing model with the following assumptions at December
31:
2005 2004
Expected dividend yield $ -- $ --
Expected stock price volatility 3,000% 259%
Risk-free interest rate 4.0% 4.0%
Expected life of options 10 years 10 years
The weighted average fair value of each option granted to employees during 2005
and 2004 was $0.22 and $0.58, respectively.
F-10
============================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
2. Summary of Significant Accounting Policies Continued
Reclassifications
Certain amounts in the 2004 financial statements have been reclassified to
conform with classifications adopted in the current year. Such reclassifications
had no effect on the net loss.
3. Liquidity and Going Concern
The Company has a working capital deficit, a stockholders' deficit, and
recurring net losses. These factors create substantial doubt about the Company's
ability to continue as a going concern. The financial statements do not include
any adjustment that might be necessary if the Company is unable to continue as a
going concern.
The ability of the Company to continue as a going concern is dependent on the
Company generating cash from the sale of its common stock or obtaining debt
financing and attaining future profitable operations. Management's plans include
selling its equity securities and obtaining debt financing to fund its capital
requirement and ongoing operations; however, there can be no assurance the
Company will be successful in these efforts.
4. Property and Equipment
Property and equipment consists of the following at December 31:
2005 2004
--------- ---------
Computer equipment and software $ 458,000 $ 239,000
Furniture and fixtures 17,000 14,000
--------- ---------
475,000 258,000
Less accumulated depreciation and amortization (178,000) (100,000)
--------- ---------
$ 297,000 $ 153,000
========= =========
The Company also had communication equipment uninstalled and held for sale
totaling $45,000 at December 31, 2005 and 2004.
F-11
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
5. Accrued Liabilities
Accrued liabilities consisted of the following at December 31:
2005 2004
-------- --------
Accrued payroll $470,000 $204,000
Other 418,000 256,000
-------- --------
$888,000 $460,000
======== ========
6. Deferred Revenue
The Company had entered into long-term service contracts which were accompanied
by payments received from customers for initial equipment installation to
service residential developments and other services. Amounts initially received
were deferred until they were earned based on the terms of the contract. All
amounts that had been received on these contracts were considered earned when
the Company moved from Utah to Georgia in 2005 and transferred its Utah
operations to others. The balance of the deferred revenue at December 31, 2005
and 2004 was $-0- and $408,000, respectively.
7. Notes Payable
Notes payable consisted of the following at December 31:
2005 2004
---------- -----------
Discounted convertible notes payable due to
SovCap. SovCap is affiliated with an officer and
director of the Company and is a significant
stockholder of the Company. These notes have a
face interest rate of 18%. The notes are unsecured
and are due on demand. The notes are convertible
at a rate of 75% of the average closing bid price
of the Company's common stock for the five trading
days ending on the trading day immediately
preceding the conversion date. $ 650,000 $ 763,000
F-12
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
7. Notes Payable Continued
Notes payable due to SovCap in the amounts of
$25,000 and $33,000, bearing interest rates of 6%
and 12%, respectively, unsecured, and due upon
demand. 57,000 --
Note payable originally to a finance company and
with an effective interest rate of 57% including
an original discount of $78,000 from issuance of
detachable warrants with the note. The note was in
default and the finance company required repayment
by a former officer of the Company who repaid the
note, accrued interest and fees under a guarantee.
The Company's obligation is now to the former
officer and shareholder. The note was
collateralized by equipment. 200,000 200,000
Note payable to Dorn & Associates. Payable in 36
monthly installments of $890 at an interest rate
of 5%. The Company is presently in default of the
payment terms on this note, and has classified the
entire note balance as current. 25,000 --
Convertible notes due to a former officer and
shareholder of the Company. These notes bear
interest at 12%, are unsecured, and due on demand.
Subsequent to December 31, 2004 these notes were
in default. The notes are convertible into
approximately 10,251 shares at approximately $8.00
per share. 74,000 82,000
Note payable to an individual with interest at 10%
collateralized by receivables and due on demand. 18,000 18,000
Note payable to a financial group with interest at
6% and due on demand. 15,000 15,000
Senior secured convertible notes payable totaling
$1,425,000 to a group of professional investment
funds. These notes bear interest at a rate of 8%,
are secured by the general assets of the Company,
and are due on February 22, 2007. The notes are
convertible at $0.89 but the conversion price may
be reset under certain conditions. This conversion
price adjustment results in a beneficial discount
to the note-holders and as a result the notes have
been fully discounted and reflected as equity. -- --
Note payable to a financial institution. The note
was payable in monthly installments of $2,000,
including interest at 14%, collateralized by
equipment. At December 31, 2005 and 2004 the
outstanding balance of the debt was $-0- and
$41,000 less a discount at December 31, 2004 of
$41,000. -- --
---------- ----------
$1,039,000 $1,078,000
========== ==========
During 2005 and 2004, respectively, $113,000 and $1,638,000 in notes payable and
accrued interest was converted to 3,278,381 and 3,511,363 shares of common
stock.
F-13
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
7. Notes Payable Continued
Future maturities of notes payable are as follows:
Year Ending December 31: Amount
-----------
2006 $ 1,039,000
8. Income Taxes
The benefit for income taxes is different than amounts which would be provided
by applying the statutory federal income tax rate to loss before benefit for
income taxes for the following reasons:
Years Ended
December 31,
--------------------------
2005 2004
----------- -----------
Income tax benefit at statutory rate $ 1,625,000 $ 1,967,000
Stock valuation for services (48,000) (649,000)
Change in valuation allowance (1,546,000) (1,316,000)
Other (31,000) (2,000)
----------- -----------
Deferred tax assets (liabilities) are comprised of the following as of December
31:
2005 2004
----------- -----------
Net operating loss carry-forwards $ 5,268,000 $ 3,691,000
Amortization of license technology 259,000 259,000
Depreciation (26,000) (44,000)
Deferred revenue -- 119,000
Allowance for doubtful accounts -- 4,000
Other 97,000 23,000
Valuation allowance (5,598,000) (4,052,000)
----------- -----------
$ -- $ --
=========== ===========
F-14
=======================================================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
8. Income Taxes Continued
At December 31, 2005, the Company has net operating loss (NOL) carry-forwards
available to offset future taxable income of approximately $14,200,000 which
will begin to expire in 2019. The utilization of the net operating loss
carry-forwards is dependent upon the tax laws in effect at the time the net
operating loss carry-forwards can be utilized. It is also likely that
utilization of the NOL's are limited based on changes in control of the Company.
A valuation allowance has been recorded against the deferred tax asset due to
the uncertainty surrounding its realization caused by the Company's recurring
losses.
9. Stockholders' Equity (Deficit)
Conversion of Debt to Common Stock
As discussed in Note 7, pursuant to the original terms of the agreements,
certain creditors converted $1,694,000 of loans and accrued interest into
3,511,363 shares of common stock.
Conversion of Preferred Stock to Common Stock
In the third quarter of 2004, certain shareholders converted 2,292,718 shares of
common stock into 3,821,197 shares of Series A Convertible Preferred Stock.
The 3,821,197 shares of preferred stock are convertible into 36,683,592 shares
of common stock any time after September 30, 2005. This conversion feature is
beneficial as to the preferred stockholders. As a result the Company is
reflecting a preferred stock dividend of $7,566,000 ratably over the term that
the preferred stock first is convertible. As of December 31, 2005 and 2004,
$5,675,000 and $1,891,000, respectively, of the dividend has been reflected on
the statement of operations.
The Series A Preferred Stock has no stated dividend rate and has a liquidation
preference of $.001 per share. The Series A Preferred Stock also has voting
rights that entitle the preferred shareholders to vote with the common
shareholders as if the preferred stock had converted to common. The conversion
ratio of the preferred into common is not subject to revision upon reverse stock
dividends or splits that reduce the total shares outstanding.
Common Shares Issued for Service
The company has issued 5,752,560 shares, as well as 2,600,000 warrants (with
exercise prices of $0.035 to 0.65) to consultants under consulting agreements
that are generally one year or less. The associated expenses are amortized over
the term of the contracts, with the unamortized portion (totaling $-0- and
$688,000 at December 31, 2005 and 2004, respectively) reflected as a reduction
to stockholders' equity (deficit).
F-15
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
9. Stockholders' Equity (Deficit) Continued
Options and warrants (were any issued in 2005? If yes, need detail added below
to the table)
The company has issued 1,597,529 and 0 warrants in conjunction with the issuance
of its securities and convertible debt during the years ended december 31, 2005
and 2004, respectively. Warrants that were issued generally do not have a life
that exceeds five years. Information regarding warrants and options to purchase
common shares is summarized below:
Number of
Options Exercise
and Price Per
Warrants Share
Outstanding at January 1, 2004 286,577 6.08 - 72.00
Granted 1,000,000 .035 - .035
Granted 1,050,000 .25 - .60
Granted 1,600,000 .28 - .65
Granted 3,900,000 .46 - .46
Canceled (250,000) 6.08 - 7.36
Canceled (3,900,000) .46 - .46
Exercised (1,000,000) .035 - .035
Exercised (1,005,405) .25 - .37
---------- ------------------
Outstanding at December 31, 2004 1,681,172 $ .028 - 72.00
========== ==================
Exercised (246,595) .46 - .46
Cancelled (348,000) .46 - .60
Granted 340,000 1.14 - 1.22
Granted 1,597,529 .1425- .1425
Exercised (1,121,072) .1425- .1425
Cancelled (30,000) 1.14 - 1.14
Granted 410,000 .10 - .10
Granted 925,000 .08 - .08
---------- ------------------
Outstanding at December 31, 2005 3,208,034 $ .08 - 72.00
========= ==================
The following table summarizes information about outstanding warrants and
options for common stock at december 31, 2005:
Outstanding Exercisable
-------------------------------------------------------------------------------------------------
Weighted
Average
Remaining Weighted
Range of Number Contractual Average Average
Exercise Out- Life Exercise Number Exercise
Prices Standing (Years) Price Exercisable Price
--------------------------------------------------------------------------------------------------
$ 16.00 - 72.00 286,577 1.10 41.73 286,577 41.73
.1425- .1425 476,457 3.8 .1425 476,457 .1425
.25 - .60 1,050,000 8 .58 1,050,000 .58
1.14 - 1.22 310,000 9.5 1.30 310,000 1.30
.08 - .10 1,335,000 10 .086 410,000 .10
------------------ --------- ----- ------- --------- --------
$ .05 - 72.00 3,208,034 8.21 4.10 2,533,034 5.16
================== ========= ===== ======= ========= ========
F-16
==================================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
10. Stock Subscriptions Receivable
Subscriptions receivable consist of the obligation of employees to purchase
common shares. In addition the Company may enter into contracts with consultants
in which the Company issues stock at the commencement of the contract period.
The value of the services or common stock given, which ever is more determinable
is recorded as a stock subscription and amortized as expense over the period of
the service contract. At December 31, 2005 and 2004 there were approximately
$-0- and $2,000 of subscriptions receivable related to these contracts.
11. Deferred Compensation
Deferred compensation is comprised of common stock issuances to employees and
consultants which have not yet vested. As of December 31, 2005 and 2004, the
company had common stock for employee services valued at $-0- and $638,000,
respectively. The measurement date of compensation is the date the shares were
granted.
12. Supplemental Cash Flow Information
During the year ended December 31, 2005, the Company had significant non - cash
financing and investing activities as follows:
o Converted $1,691,000 of notes payable and accrued interest into
3,511,363 shares of common stock.
o Issued common stock and warrants to consultants and amortized the
expense over the terms of the contracts, resulting in amortization of
deferred compensation of $1,158,000
During the year ended December 31, 2004, the Company had significant non - cash
financing and investing activities as follows:
o Issued 80,125 common shares valued at $769,000 to consultants for
short-term contract services.
o Cancelled 10,397 unvested shares of common stock valued at $223,000
recorded as deferred compensation of $212,000 and subscriptions
receivable of $11,000, due to employee terminations.
o Issued warrants in connection with debt which resulted in a debt
discount of $139,000.
o Debt issued with beneficial conversion features valued at $288,000
which resulted in debt discounts.
F-17
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
12. Supplemental Cash Flow Information Continued
oRecorded accounts receivable for unearned revenue of $51,569.
Cash paid for interest and income taxes are as follows:
Years Ended
December 31,
------------------------
2005 2004
-------- --------
Interest $ 1,000 $156,000
======== ========
Income taxes $ -- $ --
======== ========
13. Commitments and Contingencies
The Company may become or is subject to investigations, claims or lawsuits
ensuing out of the conduct of its business. The Company is currently unable to
estimate the loss (if any) related to these matters.
The Company is currently litigating a claim from a former officer and director
on a note guarantee secured by equipment. The note balance, accrued interest,
and related fees are accrued as a liability at December 31, 2005 and 2004.
14. Fair Value of Financial Instruments
The Company's financial instruments consist of cash, receivables and payables.
Due to the liquidity concerns of the Company, it is currently not able to
estimate the fair value of its financial instruments.
F-18
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
16. Subsequent Events
Our Board of Directors and majority shareholder consented to change our
corporate name from Endavo Media and Communications, Inc. to Integrated Media
Holdings, Inc. which is expected to become effective on or around April 20,
2006. We also expect to change the name of our operating subsidiary from
Susquina, Inc. to Endavo Media and Communications, Inc. We are making these name
changes to better reflect the operating structure of our combined companies and
to better position the company for strategic plans, specifically related to
potential acquisitions, as a holding company.
Effective March 22, 2006, our common stock began trading under a new stock
symbol on the Bulletin Board: "EDAV".
We entered into a consulting agreement on March 22, 2006 with Rossington
Consulting Advisors, Ltd. for the purposes of providing corporate restructuring,
mergers and acquisitions, strategic business planning, marketing and financial
advisory services to the company in conjunction with our corporate and public
capital restructure also announced in March. The company issued 1,600,000 shares
of common stock for these consulting services, which will be recorded as
deferred compensation in the first quarter of 2006.
We entered into a consulting agreement on March 22, 2006 with Mashrua Shipping
and Transport, Inc. for the purposes of providing strategic business planning,
marketing and financial advisory services to the company in conjunction with our
corporate and public capital restructure also announced in March. The company
issued 1,600,000 shares of common stock for these consulting services, which
will be recorded as deferred compensation in the first quarter of 2006.
We entered into a consulting agreement on March 22, 2006 with Ronald H. Cole for
the purposes of providing restructuring, mergers and acquisitions, business
planning, marketing and financial advisory services to the company in
conjunction with our corporate and public capital restructure also announced in
March. The company issued 1,600,000 shares of common stock for these consulting
services, which will be recorded as deferred compensation in the first quarter
of 2006.
Our Board of Directors and the majority shareholder of the company consented to
issue a one-for-forty reverse split of the company's common stock, which became
effective on March 13, 2006.
17. Recent Accounting Pronouncements
In December 2003, the FASB issued Interpretation No. 46 ("FIN 46R") (revised
December 2003), Consolidation of Variable Interest Entities, an Interpretation
of Accounting Research Bulletin No. 51 ("ARB 51"), which addresses how a
business enterprise should evaluate whether it has a controlling interest in an
entity though means other than voting rights and accordingly should consolidate
the entity. FIN 46R replaces FASB Interpretation No. 46 (FIN 46), which was
issued in January 2003. Before concluding that it is appropriate to apply ARB 51
voting interest consolidation model to an entity, an enterprise must first
determine that the entity is not a variable interest entity (VIE). As of the
effective date of FIN 46R, an enterprise must evaluate its involvement with all
entities or legal structures created before February 1, 2003, to determine
whether consolidation requirements of FIN 46R apply to those entities. There is
no grandfathering of existing entities. Public companies must apply either FIN
46 or FIN 46R immediately to entities created after January 31, 2003 and no
later than the end of the first reporting period that ends after March 15, 2004.
The adoption of FIN 46 had no effect on the Company's consolidated financial
position, results of operations or cash flows.
F-19
================================================================================
ENDAVO MEDIA AND COMMUNICATIONS, INC.
Notes to Consolidated Financial Statements
Continued
--------------------------------------------------------------------------------
17. Recent Accounting Pronouncements Continued
In December 2004, the Financial Accounting Standards Board ("FASB") issued
revised Statement of Financial Accounting Standards No. 123 entitled
"Share-Based Payment" ("FAS No. 123R"). This revised statement addresses
accounting for stock-based compensation and results in the fair value of all
stock-based compensation arrangements, including options, being recognized as an
expense in a company's financial statements. The revised Statement eliminates
the ability to account for stock-based compensation transactions using APB
Opinion No. 25 with supplemental disclosure in the notes to financial statements
as previously allowed under FAS 123. FAS No. 123R is effective for public
entities that file as small business issuers as of the beginning of the first
interim or annual reporting period that begins after December 15, 2005. The
Company is currently assessing the impact that FAS 123R will have on its
financial statements.
F-20
================================================================================
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
ITEM 8A CONTROLS AND PROCEDURES
Disclosure controls and procedures are designed with an objective of ensuring
that information required to be disclosed in our periodic reports filed with the
Securities and Exchange Commission, such as this Annual Report on Form 10-KSB,
is recorded, processed, summarized and reported within the time periods
specified by the Securities and Exchange Commission. Disclosure controls also
are designed with an objective of ensuring that such information is accumulated
and communicated to our management, including our chief executive officer and
chief financial officer, in order to allow timely consideration regarding
required disclosures.
The evaluation of our disclosure controls by our chief executive officer, who is
also our acting chief financial officer, included a review of the controls'
objectives and design, the operation of the controls, and the effect of the
controls on the information presented in this Annual Report. Our management,
including our chief executive officer, does not expect that disclosure controls
can or will prevent or detect all errors and all fraud, if any. A control
system, no matter how well designed and operated, can provide only reasonable,
not absolute, assurance that the objectives of the control system are met. Also,
projections of any evaluation of the disclosure controls and procedures to
future periods are subject to the risk that the disclosure controls and
procedures may become inadequate because of changes in conditions, or that the
degree of compliance with the policies or procedures may deteriorate.
Based on his review and evaluation as of the end of the period covered by this
Form 10-KSB, and subject to the inherent limitations all as described above, our
chief executive officer, who is also our acting chief financial officer, has
concluded that our disclosure controls and procedures (as defined in Rules
13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934) contain
material weaknesses and are not effective.
A material weakness is a significant deficiency, or a combination of significant
deficiencies, that results in more than a remote likelihood that a material
misstatement of the annual or interim financial statements will not be prevented
or detected.
The material weaknesses we have identified are the direct result of a lack of
adequate staffing in our accounting department. Currently, our chief executive
officer and a controller have sole responsibility for receipts and
disbursements. We do not employ any other parties to prepare the periodic
financial statements and public filings. Reliance on these limited resources
impairs our ability to provide for a proper segregation of duties and the
ability to ensure consistently complete and accurate financial reporting, as
well as disclosure controls and procedures. As we grow, and as resources permit,
we project that we will hire such additional competent financial personnel to
assist in the segregation of duties with respect to financial reporting, and
Sarbanes-Oxley Section 404 compliance.
We believe that we will be able to improve our financial reporting and
disclosure controls and procedures and remedy the material weakness identified
above.
28
PART III
ITEM 9. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Our directors will serve for a term of one year unless they resign or are
earlier removed. Our executive officer and key employees and consultants are
appointed by our board of directors and serve at its discretion.
Current Directors and Executive Officers
Our board of directors currently consists of three members. There are no
arrangements or understandings between any of the directors or any other persons
pursuant to which any of the directors have been selected as directors, other
than as described below. There are no "family relationships" among the
directors, as that term is defined by the Securities and Exchange Commission.
Set forth below is our current board of directors, including each member's age
and position with the Company.
Name Age Position with the Company
Paul D. Hamm 38 President, Chief Executive Officer,
and Chairman of the Board
Jerry Dunlap 52 Director
Mark S. Hewitt 54 (Former) Director, Chief Technology Officer
PAUL D. HAMM . Mr. Hamm has served as our President, Chief Executive Officer and
a member of our Board of Directors since June 24, 2004. Mr. Hamm is a 14-year
financial services industry veteran, financial entrepreneur, investment banking
professional and private equity fund manager. In 2002, Mr. Hamm founded and is
currently the Managing Partner of AlphaWest Capital Partners, a specialized
capital marketing firm providing extensive market/industry research, financial
planning and modeling, transaction advisory, marketing and investment banking
services to emerging public and "pre-public" U.S. companies. In 1998, Mr. Hamm
co-founded and currently serves as Managing Director of SovCap Investment
Management Group, the investment manager to SovCap Equity Partners, Ltd., an
offshore private investment partnership, and our principal stockholder. As a
principal investor, Mr. Hamm has made numerous private equity investments into
publicly traded companies across technology and communications related
industries. He has been actively involved with portfolio companies in business
planning and execution, often serving as primary financial and strategic advisor
to a portfolio company's management. Mr. Hamm holds NASD securities licenses,
served as a Transportation/Civil Affairs Commissioned Officer for 8 years with
the U.S. Army/USAR, and has a Bachelor of Science degree in Political Science
from Stetson University.
JERRY DUNLAP . Mr. Dunlap has served as a member of our Board of Directors since
July 1, 2004. Mr. Dunlap is co-founder and currently serves as President and
Chief Executive Officer for ISDN-Net, a internet service provider located in
Nashville, Tennessee. After ten years in existence, ISDN-Net is Tennessee's
oldest and largest independent Internet Service Provider serving 87 of the
state's 95 counties. Mr. Dunlap oversees many of the day-to-day operations of
ISDN-Net and manages the company's long-term, strategic direction. Viewed as a
pioneer in telecom networking and communications, Mr. Dunlap was asked by the
Tennessee Public Service Commission in 1992 to direct a pilot project that
ultimately resulted in the introduction of digital connectivity services in
Tennessee. Shortly after that project, in 1994, Mr. Dunlap co-founded ISDN-Net
to serve the data needs of Tennessee businesses. Mr. Dunlap has a Bachelor of
Science degree in pharmacy from the University of Tennessee.
*MARK S. HEWITT . Mr. Hewitt resigned from his position as Director and Chief
Technology Officer on December 12, 2005.
29
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires our
executive officers, directors, and persons who own more than 10% of a registered
class of our equity securities to file reports of ownership and changes in
ownership with the Securities and Exchange Commission ("SEC"). Executive
officers, directors, and greater than 10% stockholders are required by SEC
regulation to furnish us with copies of all Section 16(a) forms they file. Based
solely on our review of the copies of such forms received by it during the year
ended December 31, 2004, we believe that during such year our executive
officers, directors and 10% stockholders complied with all such filing
requirements except for the following late or delinquent filings: (i) Form 3 for
Mr. Dunlap reporting his appointment as a director; (ii) Form 4 for Mr. Dunlap
reporting certain transactions in our common stock by a company of which he is a
stockholder, officer and director; (iii) Form 4 for Mr. Hamm reporting certain
transactions in our common stock; (iv) Form 3 for Mr. Hewitt reporting his
appointment as a director; (v) Form 4 for Mr. Hewitt reporting certain
transactions in our common stock; and (vi) Form 3 and two Form 4s for SovCap
Equity Partners reporting certain transactions in our common stock.
Code of Ethics
Our board of directors is currently in the process of adopting a code of ethics
that complies with the rules promulgated under the Sarbanes-Oxley Act of 2002
and that applies to our principal executive officer and principal financial and
accounting officer and to all of our staff.
Audit Committee Financial Expert
The Securities and Exchange Commission has adopted rules implementing Section
407 of the Sarbanes-Oxley Act of 2002 requiring public companies to disclose
information about "audit committee financial experts." We do not have a standing
Audit Committee . The functions of the Audit Committee have been assumed by our
full Board of Directors. Additionally, we do not have a member of our board of
directors that qualifies as an "audit committee financial expert." The
Securities and Exchange Commission's rules do not require us to have an audit
committee financial expert, and our Board of Directors has determined that it
possesses sufficient financial expertise to effectively discharge its
obligations.
30
ITEM 10. EXECUTIVE COMPENSATION
Summary compensation table
The following table sets forth the total compensation for the fiscal years ended
December 31, 2005, 2004 and 2003 paid to or accrued for our chief executive
officer and other executive officers, excluding executive officers paid less
than $100,000 annually. Each of the following executive officers is referred to
as a "Named Executive Officer."
Annual Compensation Long Term
Compensation
Name and Year Salary ($) Bonus Securities
Principal Position ($) Underlying
Options/SARs (#)
Paul D. Hamm (1) 2005 $ 95,000 -- 525,000
Chief Executive Officer 2004 $ 67,500 -- 525,000
and President 2003 -- -- --
--------------
(1) Mr. Hamm became our Chief Executive Officer and President on June 24, 2004.
The amounts shown herein as compensation to Mr. Hamm are the total amounts
paid by the Company to AlphaWest Capital Partners, LLC, or AlphaWest, for
executive management services provided to us by Mr. Hamm between July 1,
2004 through December 31, 2004, pursuant to successive consulting
agreements between Mr. Hamm and the Company. Mr. Hamm is the sole member of
AlphaWest. These amounts may not reflect Mr. Hamm's actual compensation
from AlphaWest, which may be greater or less than the amounts shown. The
initial consulting agreement, pursuant to which Mr. Hamm provided us with
executive management services expired on September 30, 2004. On October 1,
2004, a new consulting agreement was executed between AlphaWest and the
Company, which expired on December 31, 2004. Currently, Mr. Hamm continues
to provide us with the executive management services through AlphaWest and
we have continued to honor the most recent consulting agreement despite its
expiration. We intend to maintain this arrangement until a formal written
employment agreement with Mr. Hamm is executed, at which time Mr. Hamm will
become an employee of the Company. We expect this to occur during the
second fiscal quarter of 2005. A more detailed description of the
consulting agreements with AlphaWest and the arrangement under which Mr.
Hamm continues to provide executive management services is set forth under
" Item 12. Certain Relationships and Related Transactions -- Agreements
with Executive Officers ."
31
Stock Option Grants And Exercises
There were no stock options issued granted to executive management in 2005. Paul
D Hamm signed a management contract dated October 1, 2005that provided for the
issuance of 1,000,000 options that will vest over the term of the three-year
contract. However, as of December 31, 2005, those options had not been issued to
Mr. Hamm.
OPTION GRANTS IN LAST 2 FISCAL YEARS
Individual Grants
Name Number of Securities Underlying Percent of Total Options Granted to Exercise Expiration
Options Granted (#) Employees in Fiscal Year Price Date
($/Share)
Paul D. Hamm 25,000(1) 0.4% $ 0.05(4) 6/20/14
500,000(2) 8.3% $ 0.60(4) 12/31/14
(1) Options granted pursuant to the 2004 Directors, Officers and Consultants
Stock Option, Stock Warrant and Stock Award Plan, or "2004 Plan," which
vested in three equal monthly installments commencing on July 1, 2004. The
options were not issued in tandem with stock appreciation or similar rights
and are not transferable other than by will or the laws of descent and
distribution. The options expire on June 30, 2014.
(2) Options granted pursuant to the 2004 Plan, which were completely vested on
January 1, 2005. The options were not issued in tandem with stock
appreciation or similar rights and are not transferable other than by will
or the laws of descent and distribution. The options expire on December 31,
2014.
(3) The exercise price of these options was equal to the fair market value
(closing price) of the underlying common stock on the date of grant. These
options are nonqualified options.
The following table provides information on the value of each of our Named
Executive Officer's unexercised options at December 31, 2004. None of our Named
Executive Officers exercised any options during 2004.
32
Fiscal Year End Option Values
Name Number of Securities Value of Unexercised In-the
Underlying Unexercised MoneyOptions at
Fiscal Year-End($)(1)
Options at Fiscal Year--End (#)
Exercisable Unexercisable Exercisable Unexercisable
Paul D. Hamm 525,000 -- $ 0 --
Compensation of Directors
Our non-employee directors do not receive any additional compensation for
serving as a member of our board of directors or for attending any of our board
committees, but non-employee directors are reimbursed for out-of-pocket expenses
incurred in connection with attending our board and board committee meetings.
For information concerning agreements involving Named Executive Officers see
Item 12 Certain Relationships and
Related Transactions .
33
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
The following table sets forth certain information regarding the beneficial
ownership of our common stock as of March 18, 2005 with respect to (i) each
director of the Company; (ii) each executive officer; (iii) all executive
officers and directors of the Company as a group; and (iv) each party known by
us to be the beneficial owner of more than 5% of our common stock. Unless
otherwise indicated, the mailing address for each party listed below is c/o
Endavo Media & Communications, Inc., 10 Glenlake Parkway, Suite 130, Atlanta, GA
30328. This table is based upon information supplied by current and former
officers, directors and principal stockholders. Unless otherwise indicated in
the footnotes to this table and subject to community property laws where
applicable, we believe that each of the stockholders named in this table has
sole voting and investment power with respect to the shares indicated as
beneficially owned. Applicable percentages are based on approximately 21,529,300
of our common stock outstanding on December 31, 2005 adjusted as required by
rules promulgated by the Securities and Exchange Commission.
The number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Securities Exchange Act and the information is
not necessarily indicative of beneficial ownership for any other purpose. Under
that rule, beneficial ownership includes any shares as to which the individual
or entity has voting power or investment power and any shares that the
individual has the right to acquire within 60 days through the exercise of any
stock option or other right. Unless otherwise indicated in the footnotes or
table, each person or entity has sole voting and investment power, or shares
such powers with his or her spouse, with respect to the shares shown as
beneficially owned.
Name and Address of Beneficial Owner Amount and Nature of Percent of
Beneficial Ownership Shares
Outstanding
Executive Officers and Directors
Paul D. Hamm (1) 1,269,735 5.9%
Mark S. Hewitt (2) 525,000 2.5%
Jerry Dunlap (3) -- *
Five Percent Shareholders
SovCap Equity Partners (4) 710,135 3.3%
c/o Lion Corporate Securities Ltd.
Cumberland House #27
Cumberland Street
P.O. Box N-10818
Nassau, New Providence
SovCap Investment Management 710,135 3.3%
Group LLC (5)
10 Glenlake Parkway,
Suite 130
Atlanta, GA 30328
Peter D. Martin (6) 710,135 3.3%
All Directors and Executive 1,794,735 8.3%
Officers as a Group (four persons) (1)(2)(3)
-------------
* Less than one percent.
(1) Consists of 1,124 shares of common stock owned directly by Mr. Hamm and
525,000 shares that Mr. Hamm has the right to acquire upon the exercise of
currently exercisable stock options. Mr. Hamm may also be deemed to own the
44,883 shares of Series A Preferred Stock owned by AlphaWest Capital
Partners, of which Mr. Hamm is the sole member. Series A Preferred Stock is
convertible as of September 2005 at a conversion ratio of 9.6 shares of
common stock for each share of Series A Preferred Stock, but has not been
converted as of the date of this report. Mr. Hamm, as a managing member of
SovCap Investment Management Group, also may be deemed to beneficially own
any shares of common stock beneficially owned by SovCap Investment
Management Group. Mr. Hamm disclaims beneficial ownership of the securities
held by SovCap Investment Management Group and SovCap Equity Partners
except to the extent of his proportionate interest therein. See Note (5)
below.
34
(2) Consists of 525,000 shares that Mr. Hewitt has the right to acquire upon
the exercise of currently exercisable stock options. Mr. Hewitt also owns
2,076 shares of Series A Preferred Stock. Series A Preferred Stock is
convertible as of September 2005 at a conversion ratio of 9.6 shares of
common stock for each share of Series A Preferred Stock, but has not been
converted as of the date of this report.
(3) ISDN.Net, of which Mr. Dunlap is President and an owner, owns 80,000 shares
of Series A Preferred Stock. Series A Preferred Stock is convertible as of
September 2005 at a conversion ratio of 9.6 shares of common stock for each
share of Series A Preferred Stock, but has not been converted as of the
date of this report. Mr. Dunlap disclaims beneficial ownership of the
securities owned by ISDN.Net except to the extent of his proportionate
interest therein.
(4) Includes 710,135 common shares held by SovCap Equity Partners. SovCap may
also receive share upon conversion of outstanding convertible demand notes
issued between August 21, 2003 and September 8, 2004 if demand for payment
is made by SovCap and the company chooses to make payment by issuing shares
of common stock based on 75% of the 5 day average market price prior to the
date payment demand is made.. SovCap Equity Partners also holds 3,581,585
shares of Series A Preferred Stock Series A Preferred Stock is convertible
as of September 2005 at a conversion ratio of 9.6 shares of common stock
for each share of Series A Preferred Stock, but has not been converted as
of the date of this report.. SovCap Equity Partners has sole voting power
but shares dispositive power with SovCap Investment Management Group, its
investment manager, with respect to the securities of the Company owned by
SovCap Equity Partners.
(5) Consists solely of shares of common stock beneficially owned directly by
SovCap Equity Partners. SovCap Investment Management Group, as investment
manager of SovCap Equity Partners, has shared dispositive power (but not
voting power) with respect to the shares of common stock beneficially owned
by SovCap Equity Partners. Accordingly, it may be deemed to beneficially
own any shares of common stock beneficially owned by SovCap Equity
Partners. SovCap Investment Management Group disclaims beneficial ownership
of the securities held by SovCap Equity Partners except to the extent of
its proportionate interest therein.
(6) Mr. Martin, as a managing member of SovCap Investment Management Group, may
be deemed to beneficially own any shares of common stock beneficially owned
by SovCap Investment Management Group. Mr. Martin disclaims beneficial
ownership of the securities held by SovCap Equity Partners and shares
beneficially owned by SovCap Investment Management Group except to the
extent of his beneficial ownership therein. See Note (5) above.
Equity Compensation Plan Information
We maintain the 2004 Directors, Officers and Consultants Stock Option, Stock
Warrant and Stock Award Plan pursuant to which we may grant equity awards to
eligible persons. The following table provides information as of March 31, 2006
about equity awards under this plan.
(a) (b) (c)
Number of securities remaining
Plan category Number of securities available for
to be issued upon Weighted-average future issuance under equity
exercise of outstanding exercise price of compensation plans
options, outstanding options, (excluding securities
warrants and rights warrants and rights reflected in column (a))
Equity compensation plans approved
by security holders (1) 2,695,000 2) $ .418 12,717,802
Equity compensation plans not -- -- --
approved by security holders
Total 2,695,000 $ .418 12,717,802
35
(1) We previously maintained the New Planet Resources, Inc. Stock Incentive Plan
and the 2002 Directors, Officers and Consultants Stock Option, Stock Warrant and
Stock Award Plan. There are no outstanding options under these plans and we
intend to retire these plans.
(2) This number does not include 8,512,533 common shares issued pursuant to the
2004 Directors, Officers and Consultants Stock Option, Stock Warrant and Stock
Award Plan and for warrants previously exercised that were granted pursuant to
the 2004 Plan.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Agreements with Executive Officers
On October 1, 2005, we entered into an executive management agreements with our
President and CEO, Paul D Hamm,. Under this employment agreement, Mr. Hamm
agreed to act as our President and Chief Executive Officer, as well as our
interim Chief Financial Officer, The agreement is for a term of three years. As
compensation for services under the consulting agreements, Mr. Hamm is entitled
to receive a base salary of $6,250 per month. If the company generates revenues
of $104,166.67 ($1,250,000 annualized) in any given month, Mr. Hamm's salary
will be increased to $10,000 per month. In connection with their engagement by
the Company, Mr. Hamm is entitled to be issued incentive stock options to
purchase 1,000,000 shares of our common stock. The options will vest in
increments of approximately one-third on each of the 3 anniversaries of the
agreement.
Other Relationships and Related Transactions
Between August 21, 2003 and December 31, 2005, we borrowed a total of $762,800
from our largest security holder, SovCap Equity Partners, Ltd. in the form of 13
different convertible promissory notes and 3 non-convertible notes. Two of the
convertible notes, totaling a principal amount of $113,000 were sold privately
and converted in common shares in December 2005 and one note was sold privately
and converted into common stock in March 2006. Each of the remaining convertible
notes is due within 10 days of demand by SovCap. The notes are not subject to
interest; however there is a repayment fee equal to the product of (i) 1.5% of
the outstanding principal amount under the note and (ii) the number of 30-day
periods (rounded up) that the note has been outstanding. The repayment fee is
owed regardless of whether the note is prepaid in advance or becomes due upon
demand or default. If we are unable to make the payments upon demand or when
otherwise due, interest will also accrue on the amount owed at an annual
interest rate of 12%. Each note is convertible into shares of our common stock
at 75% of the average closing bid price of our common stock over the five
trading days preceding the conversion. We also granted SovCap piggyback
registration rights with respect to the shares of common stock issuable upon
conversion of the notes, which SovCap waived in connection with our recent
private placement of convertible promissory notes and warrants. As of March 31,
2006, the aggregate amount of principal and repayment premiums due upon demand
under the convertible notes was $818,810.50, or approximately 1,455,663 shares
of our common stock had SovCap elected to convert. The non-convertible notes
also remain outstanding as of March 31, 2006.
36
ITEM 13. EXHIBITS, LIST AND REPORTS ON FORM 8-K
(a) The following exhibits are either attached hereto or incorporated herein by
reference as indicated.
Exhibit Description Previously Filed as Exhibit File Date
Number Number Previously
Filed
2.1 Agreement and Plan of Merger Attached to the Registrant's Current Report 001-16381 9/17/02
on Form 8-K
3.1 Certificate of Incorporation Exhibits 1 and 1.1 to the Registrant's 001-16381 3/01/01
Registration Statement on Form 8-A
3.2 Amended and Restated Bylaws Exhibit 2 to the Registrant's Registration 001-16381 3/01/01
Statement on Form 8-A
4.1 Form of 8.0% Senior Secured Convertible Exhibit 4.1 to Registrant's Current Report on 001-16381 2/28/05
Note Form 8-K
4.2 Form of Warrant Exhibit 4.2 to Registrant's Current Report on 001-16381 2/28/05
Form 8-K
4.3 Form of Additional Investment Right "A" Exhibit 10.2 to Registrant's Current Report 001-16381 2/28/05
on Form 8-K
4.4 Form of Additional Investment Right "B" Exhibit 10.3 to Registrant's Current Report 001-16381 2/28/05
on Form 8-K
10.1 2004 Directors, Officers and Consultants Exhibit 4.1 to the Registrant's Registration 333-119586 10/07/04
Stock Option, Stock Warrant and Stock Statement on Form S-8
Award Plan
10.2 2002 Directors, Officers and Consultants Exhibit 4.1 to the Registrant's Registration 333-99371 9/10/02
Stock Option, Stock Warrant and Stock Statement on Form S-8
Award Plan
10.3 Executive Management Agreement, dated Attached hereto
October 1, 2005 by and between the
Registrant and Paul D Hamm
10.4 Form of SovCap Promissory Note (1) Attached hereto
10.5 Form of Securities Purchase Agreement Exhibit 10.1 to Registrant's Current 001-16381 2/28/05
for 8.0% Senior Secured Convertible Notes Report on Form 8-K
10.6 Form of Security Agreement Exhibit 10.4 to Registrant's Current 001-16381 2/28/05
Report on Form 8-K
21 Company Subsidiaries Attached hereto
23.1 Consent of Hein & Associates LLP Attached hereto
23.2 Consent of Tanner & Co. Attached hereto
31 Certification pursuant to SEC Release Attached hereto
No. 33-8238, as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of
2002
32 Certification pursuant to 18 U.S.C. Attached hereto
Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act
of 2002
37
-----------------
(1) The Company made and delivered to SovCap Equity Partners, Ltd. 13 separate
demand promissory notes from August 21, 2003 through September 8, 2004. Each of
these demand notes used the form attached. Only the principal amounts varied.
These demand notes are discussed in greater detail under Item 12. Certain
Relationships and Related Transactions - Other Relationships and Related
Transactions .
(b) We did not file any Current Reports on Form 8-K during the period covered by
this Annual Report.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
Our audit committee, pursuant to authority granted to it by our board of
directors, has selected Ronald N. Silberstein CPA PLLC, certified public
accountants, as independent auditors to examine our annual consolidated
financial statements for our fiscal year ending December 31, 2005.
We previously engaged Hein & Associates. to audit our financial statements for
the fiscal year ended December 31, 2004. We have paid or expect to pay the
following fees to Ronald N. Silberstein CPA PLLC and Hein & Associates, LLP for
work performed in 2005 and 2004 or attributable to the audits of our 2005 and
2004 consolidated financial statements:
2004 2005
Audit Fees $ 42,415.00 $ 20,000.00
Audit-Related Fees $ 0 $ 0
Tax Fees $ 3,000 $ 0
All Other Fees $ 1,650.00 $ 1,730.00
In January 2003, the SEC released final rules to implement Title II of the
Sarbanes-Oxley Act of 2003. The rules address auditor independence and have
modified the proxy fee disclosure requirements. Audit fees include fees for
services that normally would be provided by the accountant in connection with
statutory and regulatory filings or engagements and that generally only the
independent accountant can provide. In addition to fees for an audit or review
in accordance with generally accepted auditing standards, this category contains
fees for comfort letters, statutory audits, consents, and assistance with and
review of documents filed with the SEC. Audit-related fees are assurance-related
services that traditionally are performed by the independent accountant, such as
employee benefit plan audits, due diligence related to mergers and acquisitions,
internal control reviews, attest services that are not required by statute or
regulation, and consultation concerning financial accounting and reporting
standards.
We expect Ronald N Silberstein CPA PLLC's fees for the 2005 audit to be
approximately $20,000.
The board of directors has reviewed the fees paid to Hein & Associates LLP and
Ronald N Silberstein CPA PLLC and has considered whether the fees paid for
non-audit services are compatible with maintaining Mr. Silberstein's
independence. The board of directors may additionally ratify certain de minimis
services provided by the independent auditor without prior approval, as
permitted by the Sarbanes-Oxley Act and rules of the SEC promulgated thereunder.
We will disclose all such approvals, as applicable, in upcoming years.
38
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
COMPANY NAME CORPORATION
Date: April 15, 2006 By: /s/ Paul D. Hamm
--------------------------------
Paul D. Hamm,
Chief Executive Officer
In accordance with the Exchange Act, this report has been signed below by the
following persons on behalf of the registrant and in the capacities and on the
dates indicated.
Signature Title Date
/s/ Paul D. Hamm President, Chief Executive Officer 04-15-06
----------------------------- and Chairman (Principal Executive
Paul D. Hamm Officer and acting Principal
Financial and Accounting Officer)
/s/ Jerry Dunlap Director 04-15-06
------------------------------
Jerry Dunlap
40