Delaware
|
|
95-4439334
|
(State
or other jurisdiction of
incorporation
or organization
|
|
(I.R.S.
Employer
Identification
No.)
|
|
|
|
2530
Meridian Parkway, Second Floor Durham, North
Carolina
|
|
27713
|
(Address
of principal executive offices)
|
|
(Zip
Code)
|
Large
accelerated filer
¨
|
Accelerated
filer
¨
|
Non-accelerated
filer
x
|
|
|
Page
|
|
|
|
|
|
|
|
PART
I
|
|
Item
1.
|
Business
|
1
|
Item
1A.
|
Risk
Factors
|
17
|
Item
2.
|
Properties
|
39
|
Item
3.
|
Legal
Proceedings
|
39
|
Item
4.
|
Submission
of Matters to a Vote of Security Holders
|
40
|
|
|
|
PART
II
|
||
|
|
|
Item
5.
|
Market
for Registrant's Common Equity, Related Stockholder Matters and
Issuer
Purchases of Equity Securities
|
40
|
Item
6.
|
Selected
Financial Data
|
42
|
Item
7.
|
Management's
Discussion and Analysis of Financial Condition and Results of
Operations
of
Operations
|
42
|
Item
7A.
|
Quantitative
and Qualitative Disclosures About Market Risk
|
64
|
Item
8.
|
Financial
Statements and Supplementary Data
|
65
|
Item
9.
|
Changes
in and Disagreements with Accountants on Accounting and Financial
Disclosure
|
65
|
Item
9A.
|
Controls
and Procedures
|
65
|
Item
9B.
|
Other
Information
|
68
|
|
|
|
PART
III
|
||
|
|
|
Item
10.
|
Directors
and Executive Officers of the Registrant
|
68
|
Item
11.
|
Executive
Compensation
|
74
|
Item
12.
|
Security
Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters
|
83
|
Item
13.
|
Certain
Relationships and Related Transactions
|
87
|
Item
14.
|
Principal
Accounting Fees and Services
|
92
|
|
|
|
PART
IV
|
||
|
|
|
Item
15.
|
Exhibits
, Financial Statement Schedules
|
94
|
· |
Unified
Dashboard Application.
Our customizable dashboards provide a snapshot of real-time business
information in a single view. Our dashboards allow users to monitor
key
business information about their company and employees. Each subscriber
can customize the dashboard to best suit their own
company.
|
· |
Accounting
Application.
Our
Accounting Application is a daily-use web based application that
allows
users to create and maintain their accounting books online in a secure
fashion. This application contains standard accounting features aimed
at
the small business user. Since the introduction of this application,
we
have received feedback from both customers and an accounting consultant
that we should improve this application. We are improving our accounting
application based on this feedback.
|
· |
Human
Resource Center Application.
Our
Human Resource Center Application is a daily-use application designed
to
allow companies to manage their employee information online, including
compensation, attendance records
,
timesheets
,
HR
documents and beneficiary
information.
|
· |
Sales
Force Automation (SFA)/Customer Relationship Management (CRM) Application.
Our
SFA/CRM application is designed to allow companies to manage people
and
the sales and marketing processes more effectively by offering the
capability to collaborate and share information and standardize business
processes into a single real-time system. In mid-May of 2006, we
started
selling a simplified version of the SFA/CRM Software into our application
suite. We also continue to sell this product as a stand-alone application
through our wholly-owned subsidiary, Smart CRM,
Inc.
|
· |
e-Commerce
Application.
Our
e-Commerce applications are designed to provide rapid website design
and
launch; inventory query; shopping cart; financial transactions; shipping,
and; business to business communication. When we acquired this product,
we
had targeted to begin selling it on our
OneBiz
SM
platform during 2006. We are currently evaluating whether we will
be able
to integrate some of the features of this application
into
our application suite during 2006. Until we do, we will sell this
application only as a stand alone
product.
|
· |
Calendar
Application.
Our
Calendar Application provides users with an online
calendar.
|
· |
Contacts
Application.
Our
Contacts Application provides users with an online business contact
management system.
|
· |
Continue
to enhance our products, improve our website design and identify
acquisitions that allow us to expand the products we offer and to
grow our
customer base assuming the company is successful in raising additional
capital for this purpose, although the SEC investigation and its
effect on
trading in our stock may make acquisitions and raising capital
difficult.
|
· |
We
will be working to increase the total number of subscribers to
our
platform by executing a marketing strategy which will include efforts
to
cross sell our products to the customers of Computility and iMart,
sell
subscriptions in volume to syndication partners for distribution
to small
businesses, increase the number of our syndication partners and
work more
closely with our syndication partners to increase the number of
small
business subscribers who purchase access to our software through
the
websites of our syndication partners. Implementing this strategy
will
require both improving our products and adding sales and marketing
personnel, including an evaluation of whether our current technology
portfolio accurately reflects our business strategy. We will need
to raise
additional capital to finance our
plans.
|
· |
SaaS
is less expensive compared to software distributed by other means
and
offers predictable implementation and management costs. Companies
pay a
monthly or annual per-user subscription fee for access to software
services and are spared up-front costs of buying hardware and software
and
hiring specialized IT personnel. The price tag of SaaS solutions
typically
runs about one-third of the cost of deploying similar software
in-house.
|
· |
SaaS
offers customers lower risk and faster return-on-investment. With
reduced
overhead investment and quicker implementation, customers can afford
to
try SaaS applications and gain benefits more
quickly.
|
· |
Customers
generally report that
SaaS
is easier to use, requiring less training. Use of familiar Web interfaces
makes it easy for customer administrators and end users to use new
software, resulting in higher end-user adoption and lower training
costs.
|
· |
SaaS
enables vendors to provide more responsive service and support. SaaS
vendors know in real-time how their customers use the system and
which
features work and don’t work. Problems need be fixed only once for the
benefit of all customers.
|
· |
Unified
Dashboard
|
· |
Accounting
|
· |
Human
Resource Management
|
· |
Sales
Force Automation/Customer Relationship
Management
|
· |
e-Commerce
|
· |
Calendars
|
· |
Contacts
|
· |
Business
& Government Forms
|
· |
Business
Letters
|
· |
Business
Plan
|
· |
Secured
Instant Messenger
|
· |
Additional
Business Tools (See Complete List
Below)
|
· |
Business
Plan Writing & Evaluation
|
· |
Business
Incorporation
|
· |
Direct
Mailing List
|
· |
Press
Release Service
|
· |
Domain
Name Registration
|
· |
Employee
information
|
· |
Attendance
records
|
· |
Compensation
|
· |
Timesheets
|
· |
HR
documents
|
· |
Beneficiary
information
|
· |
Performance
Reviews - Conduct performance reviews for your employees and file
them
online.
|
· |
Company
Announcements/News - Quickly and easily send company news and
announcements to employees.
|
· |
Company
Compliance - Incorporate additional company compliance documents
as part
of the HR Documents library
|
· |
Employee
insurance forms
|
· |
W-2s
|
· | Employment contracts |
· |
I-9
eligibility verification
|
· |
Company
policies
|
· |
Account
|
· |
Contact
|
· |
Opportunity
management
|
· |
Activity
tracking
|
· |
Sales
management
|
· |
Reporting
|
· |
Analytics
|
· |
Mini-dashboard
|
· |
Customer
service management
|
· |
Customer
support
|
· |
Marketing
management
|
· |
Mini-dashboard
|
· |
Improves
communications and workflow within a user’s organization; allows employees
to share information and applications and collaborate - from any Internet
connected location.
|
· |
Provides
effective tools to improve the quality of management, by providing
small
business with a simplified version of Enterprise Relationship Management
software used by bigger companies.
|
· |
Integrated
package provides users with a “control center” that replaces patchwork of
single-function applications and allows detailed visualization of
the
status of the business.
|
· |
Provides
management with flexibility to meet the requirements of changing
workforce
levels by enabling management to quickly turn on and turn off employee
access to different software and
data.
|
· |
A
centralized dashboard/console that can be customized to show the
critical
business operations information a user needs from a single web page.
This
information displayed is role centric and is based on the role of
the
user.
|
· |
Seamless
data exchange between all appropriate applications so information
can be
input once and automatically accessed as needed in connection with
multiple applications, which provides significant time and cost savings
as
well as reducing input errors.
|
· |
Auditing
of platform data access and changes to monitor activity by
users.
|
· |
Credit
card billing services for all applications within the platform
for our for fee or pre-defined package purchases. A platform
license server integrated with the credit card billing system to
provide
authorized access to users within a company. The license server acts
as a
gatekeeper to make sure services used are paid for.
|
· |
Platform
Single Sign On. Our platform allows us to distribute our content
and
third-party partner content seamlessly to small business users
using
proprietary single sign-on methodology. After the user signs onto
our
OneBiz
SM
platform, the user does not have to re-register or login with our
integration partners or with other applications interoperating
in the
platform.
|
· |
Private
Label Syndication. The new platform is built using open J2EE standards
and
allows us to deploy our products and services to our private label
syndication partners and the users of their web sites with the look
and
feel of their web sites. The syndication technology in the platform
thereby automates the process by which we integrate our products
and
services onto our syndicated partners’ web
sites.
|
· |
Collaboration
capabilities so various users can work together as a group sharing
information as appropriate, significantly improving workflow efficiency
and generating higher quality
output.
|
· |
User
Interface Wizards for applications. Our products and services feature
wizard interfaces that utilize a series of fill-in-the-blank
questionnaires. In addition, once the user inputs data, it is shared
as
appropriate throughout the platform so information need only be input
once.
|
· |
The
platform uses open J2EE standards using the struts application framework.
The platform follows a logical and physical 3-tier architecture that
allows for scalability. Due to the open standards employed, the platform
facilitates plug and play of our developed applications and third
party
applications. The OneBiz
SM
platform’s core consists of the business services that provide common
platform functionality like e-commerce, authentication, session management
etc.
|
· |
Dashboard:
detailed drill-down views and
capabilities
|
· |
Dashboard:
dynamically updated OneBiz
SM
functionality based on the state of
business
|
· |
HR:
professional training (continuing
education)
|
·
|
HR:
online interview and applicant
screening
|
· |
Shipping
(advanced features)
|
· |
Printing
and Copying Services
|
· |
Payroll
|
· |
Insurance
/ Benefits
|
· |
Investment
/ 401(k)
|
· |
Financial
Services
|
· |
Inventory
/ Order Management
|
Competitive
Factors
|
Smart
Online
|
Customer
Awareness Access. Most small businesses do not spend substantial
time
researching and evaluating solutions. Most purchase what is most
readily
available.
|
Many
of our competitors have widely known brand names, large marketing
budgets,
and are widely available. Through our syndication, and OEM partnering
programs, we seek to gain greater customer awareness and access to
our
products at relatively moderate cost to us. While we may lack the
marketing dollars to compete with industry giants, we believe our
corporate syndication partners will allow us to compete effectively
if we
are able to motivate our channel partners to devote resources to
selling
subscriptions. This will require us to hire additional personnel
to manage
these relationships.
|
Value.
Most small businesses do not have sufficient cash and do not invest
in
information technology, unless they see a tangible value for their
investment.
|
We
believe one distinctive value our applications offer is the reduction
of
the time it takes small businesses to enter, change and retrieve
important
data. By integrating data sharing across applications through our
platform
small businesses can enter or change data once.
|
Suppliers
must be able to supply the applications and features customers
need.
|
We
believe we offer more applications and features specifically targeted
to
small businesses than most of our competitors. However, our individual
applications must also be competitive with the applications offered
by
industry leaders in those specific segments. This will require additional
development work by us.
|
Applications
must be user friendly and require little training. Small businesses
generally do not have IT departments to train employees and support
software.
|
We
continue to improve the ease of use and performance of our applications
as
we have received feedback from our customers about difficulties in
accessing and using our software. We also offer free telephone support
services. Until recently, our software consisted primarily of simple
business tools. With the addition of new, more complex applications,
we
expect to have additional support services.
|
Compatibility
with other information technology
|
We
have designed our platform and technology to be compatible with the
information technology most often used by small businesses, which
include
personal computer operating systems, internet access software, email
and
instant messaging.
|
Price.
Most small businesses are price sensitive.
|
Our
pricing structure requires very little initial investment by small
businesses and is cost competitive with the products of competitors
over
the long-term. Our product delivery model also includes automatic
free
updates.
|
Obsolescence.
|
We
are always improving our platform and expanding our content and
applications. We believe the release of our applications demonstrates
our
commitment to industry leadership in this
area.
|
|
·
|
Our
Financial Condition
|
|
·
|
Our
Products and Operations
|
|
·
|
Our
Market, Customers and Partners
|
|
·
|
Our
Officers, Directors, Employees and
Shareholders
|
|
·
|
Regulatory
Matters that Affect Our Business
|
|
·
|
Matters
Related to the Market For Our
Securities
|
• |
difficulties
in integrating operations, technologies, services and
personnel;
|
• |
diversion
of financial and managerial resources from existing
operations;
|
• |
cash
requirements for purchase price reduces the cash available for
operations;
|
•
|
risk
of entering new markets;
|
• |
potential
write-offs of acquired assets;
|
• |
potential
loss of key employees;
|
• |
inability
to generate sufficient revenue to offset acquisition or investment
costs;
and
|
•
|
delays
in customer purchases due to
uncertainty.
|
• |
risk
of operating and integrating geographically remote
offices;
|
• |
cash
requirements for purchase price reduces the cash available for
operations
|
• |
risk
of integrating technologies and offerings with our current applications;
|
•
|
risk
of converting customer data from stand alone product offerings
of the
acquisition targets to formats utilized by the application bundled
offerings;
|
•
|
risk
of losing customers of the acquired companies due to actual or
perceived
changes in operations and customer
interfaces;
|
•
|
risk
of integrating management, administrative, operational and financial
infrastructures;
|
•
|
risks
of implementing and monitoring compliance with corporate governance
and
public company reporting;
and
|
•
|
requirements
and the ability of management to manage and timely and accurately
consolidate the results of
operations.
|
•
|
potential
reluctance by businesses to migrate to an on-demand application
service;
|
•
|
the
price and performance of our
service;
|
•
|
the
level of customization we can
offer;
|
•
|
the
availability, performance and price of competing products and services;
and
|
•
|
potential
reluctance by businesses to trust third parties to store and manage
their
internal data.
|
• |
costs
of customization and localization of products for foreign
countries;
|
•
|
laws
and business practices favoring local
competitors;
|
•
|
uncertain
regulation of electronic commerce;
|
•
|
compliance
with multiple, conflicting, and changing governmental laws and
regulations;
|
•
|
longer
sales cycles; greater difficulty in collecting accounts
receivable;
|
•
|
import
and export restrictions and
tariffs;
|
•
|
potentially
weaker protection for our intellectual property than in the United
States,
and practical difficulties in enforcing such rights
abroad;
|
•
|
difficulties
staffing and managing foreign
operations;
|
•
|
multiple
conflicting tax laws and regulations;
and
|
•
|
political
and economic instability.
|
• |
Our
board of directors is divided into three classes whenever the number
of
directors is six or more, in which case, approximately one-third
of our
board of directors will be elected each year. This delays the ability
of
shareholders, including any acquiror, to change our board of
directors.
|
• |
Our
board of directors has the right to elect directors to fill a vacancy
created by the expansion of the board of directors or the resignation,
death or removal of a director, which prevents shareholders from
being
able to fill vacancies on our board of
directors.
|
• |
Cumulative
voting in the election of directors is not authorized by our certificate
of incorporation. This limits the ability of minority shareholders
to
elect director candidates.
|
• |
Shareholders
must provide advance notice to nominate individuals for election
to the
board of directors or to propose matters that can be acted upon at
a
shareholders’ meeting. This requirement may discourage or deter a
potential acquiror from conducting a solicitation of proxies to elect
the
acquiror’s own slate of directors or otherwise attempting to obtain
control of our company.
|
• |
Our
board of directors may issue, without shareholder approval, shares
of
undesignated preferred stock. The ability to authorize undesignated
preferred stock makes it possible for our board of directors to issue
preferred stock with voting or other rights or preferences that could
impede the success of any attempt to acquire
us.
|
• |
Provisions
in agreements related to the acquisition of our e-commerce software
application business which restrict how we operate that business
and
installment payment obligations for the purchase price of the e-commerce
software application business may discourage other companies from
purchasing our business.
|
• |
the
evolving demand for our services and
software;
|
•
|
spending
decisions by our customers and prospective
customers;
|
•
|
our
ability to manage expenses;
|
•
|
the
timing of new product releases;
|
•
|
changes
in our pricing policies or those of our
competitors;
|
•
|
the
timing of execution of large
contracts;
|
•
|
changes
in the mix of our services and software
offerings;
|
•
|
the
mix of sales channels through which our services and software are
sold;
|
•
|
costs
of developing new products and
enhancements;
|
•
|
global
economic and political conditions;
|
•
|
our
ability to retain and increase sales to existing customers, attract
new
customers and satisfy our customers’
requirements;
|
•
|
the
renewal rates for our service;
|
•
|
the
rate of expansion and effectiveness of our sales force;
|
•
|
the
length of the sales cycle for our
service;
|
•
|
new
product and service introductions by our
competitors;
|
•
|
technical
difficulties or interruptions in our
service;
|
•
|
regulatory
compliance costs; payment defaults by customers;
|
•
|
integration
of acquisitions, and
|
•
|
extraordinary
expenses such as litigation or other dispute-related settlement
payments.
|
• |
variations
in our actual and anticipated operating
results;
|
•
|
changes
in our earnings estimates by
analysts;
|
•
|
the
volatility inherent in stock prices within the emerging sector within
which we conduct business;
|
•
|
announcements
of technological innovations, new services or service enhancements,
strategic alliances or significant agreements by us or by our
competitors;
|
•
|
recruitment
or departure of key personnel;
|
•
|
changes
in the estimates of our operating results or changes in recommendations
by
any securities analysts that elect to follow our Common
Stock;
|
•
|
market
conditions in our industry, the industries of our customers and the
economy as a whole;
|
•
|
the
recent suspension in the trading of our securities issued by the
Securities and Exchange Commission;
|
•
|
the
present inability of brokers and dealers to quote the price of our
Common
Stock on the “Over the Counter” markets;
and
|
•
|
the
volume of trading in our Common Stock, including sales of substantial
amounts of Common Stock issued upon the exercise of outstanding options
and warrants.
|
•
|
Contains
a description of the nature and level of risk in the market for penny
stocks in both public offerings and secondary
trading;
|
•
|
Contains
a description of the broker’s or dealer’s duties to the customer and of
the rights and remedies available to the customer with respect to
a
violation to such duties or other
requirements;
|
•
|
Contains
a brief, clear, narrative description of a dealer market, including
“bid”
and “ask” prices for penny stocks and the significance of the spread
between the bid and ask price;
|
•
|
Contains
a toll-free telephone number for inquiries on disciplinary
actions;
|
•
|
Defines
significant terms in the disclosure document or in the conduct of
trading
penny stocks; and
|
•
|
Contains
such other information and is in such form (including language, type,
size, and format) as the Commission shall
require.
|
•
|
bid
and offer quotations for the penny
stock;
|
•
|
the
compensation of the broker-dealer and its salesperson in the
transaction;
|
•
|
the
number of shares to which such bid and ask prices apply, or other
comparable information relating to the depth and liquidity of the
market
for such stock; and
|
•
|
monthly
account statements showing the market value of each penny stock held
in
the customer’s account.
|
Quarter
Ended
|
June
30, 2005
|
September
30, 2005
|
December
31, 2005
|
Year
|
High
|
$8.20
|
$11.50
|
$11.25
|
$11.50
|
Low
|
$1.50
|
$8.00
|
$6.30
|
$1.50
|
2005
|
|
2004
|
|
2003
|
|
2002
|
|
2001
|
||||||||
Revenues
|
$
|
2,701,976
|
$
|
1,002,970
|
$
|
1,261,223
|
$
|
1,391,645
|
$
|
3,193,078
|
||||||
Loss
from Operations
|
$
|
(16,066,829
|
)
|
$
|
(2,801,935
|
)
|
$
|
(1,865,282
|
)
|
$
|
(999,765
|
)
|
$
|
(1,993,879
|
)
|
|
Net
Loss Attributable to Common
Stockholders
|
$
|
(15,590,609
|
)
|
$
|
(8,319,049
|
)
|
$
|
(4,375,836
|
)
|
$
|
(1,766,606
|
)
|
$
|
(1,994,203
|
)
|
|
Net
Loss per Share - Basic and Diluted
|
$
|
(1.20
|
)
|
$
|
(0.82
|
)
|
$
|
(0.61
|
)
|
$
|
(0.25
|
)
|
$
|
(0.27
|
)
|
|
Number
of Shares Used in Per Share
Calculation
|
12,960,006
|
10,197,334
|
7,145,047
|
7,181,759
|
7,286,965
|
|||||||||||
|
BALANCE SHEET DATA |
As
of December 31,
|
|||||||||||||||
|
2005
|
2004
|
2003
|
2002
|
2001
|
|||||||||||
Total
Assets
|
$
|
14,558,079
|
$
|
773,701
|
$
|
306,072
|
$
|
252,579
|
$
|
724,349
|
||||||
Long-term
Obligations
|
$
|
2,963,289
|
$
|
1,091,814
|
$
|
1,193,211
|
$
|
958,925
|
$
|
722,309
|
||||||
Redeemable
Preferred Stock
|
$
|
-
|
$
|
-
|
$
|
17,509,214
|
$
|
14,692,150
|
$
|
12,128,130
|
||||||
Stockholders'
Equity (Deficit)
|
$
|
6,672,631
|
$
|
(1,911,090
|
)
|
$
|
(22,014,156
|
)
|
$
|
(19,268,323
|
)
|
$
|
(15,864,201
|
)
|
· |
Subscription
fees - Monthly fees charged to customers for access to our suite
of
applications, including those applications acquired in the iMart
and
Computility acquisitions.
|
· |
Integration
Fees - fees charged to partners to integrate their products into
our
syndication platform. Integrating third-party content and products
has
been a key component of our strategy to continuously expand and enhance
its platform offered to syndication partners and its own customer
base.
|
· |
Syndication
Fees - fees consisting of:
|
o |
Fees
charged to syndication partners to create a customized private-label
site.
|
o |
Barter
revenue derived from syndication agreements with media
companies.
|
· |
Professional
Service Fees
|
· |
OEM
Revenues
|
|
Year
Ended
DECEMBER
31, 2005
|
Year
Ended
DECEMBER
31, 2004
|
Year
Ended
DECEMBER
31, 2003
|
|||||||
|
|
|
|
|||||||
Smart
II, Ltd. ("SIL"), formerly known as Smart Revenue Europe
Ltd.
- Integration fees
|
$
|
0
|
$
|
330,050
|
$
|
342,857
|
||||
|
||||||||||
Parson
and Shearson, Inc. -
Consulting
Services
|
0
|
0
|
150,000
|
|||||||
|
||||||||||
Small
Business Lending Institute
Consulting
Services
|
0
|
0
|
20,200
|
|||||||
Total
Related Party Revenues
|
$
|
0
|
$
|
330,050
|
$
|
513,057
|
||||
|
|
Year
Ended
DECEMBER
31,
2005
|
Year
Ended
DECEMBER
31,
2004
|
Year
Ended
DECEMBER
31,
2003
|
|||||||
REVENUES:
|
||||||||||
Integration
fees
|
$
|
798,178
|
$
|
374,055
|
$
|
367,617
|
||||
Syndication
fees
|
402,847
|
176,471
|
115,544
|
|||||||
OEM
revenue
|
48,000
|
55,936
|
48,620
|
|||||||
Web
services
|
-
|
62,365
|
207,570
|
|||||||
Subscription
Fees
|
914,674
|
-
|
-
|
|||||||
Professional
Services Fees
|
435,486
|
-
|
-
|
|||||||
Other
revenues
|
102,791
|
4,093
|
8,815
|
|||||||
Related
party revenues
|
-
|
330,050
|
513,057
|
|||||||
Total
revenues
|
$
|
2,701,976
|
$
|
1,002,970
|
$
|
1,261,223
|
||||
|
|
|
|
Year
Ended
DECEMBER
31,
2005
|
|
|
Year
Ended
DECEMBER
31,
2004
|
|
Year
Ended
DECEMBER
31,
2003
|
|
COST
OF REVENUES
|
|
$
|
400,822
|
|
$
|
211,616
|
$
|
187,064
|
|
Year
Ended
DECEMBER
31,
2005
|
Year
Ended
DECEMBER
31,
2004
|
Year
Ended
DECEMBER
31,
2003
|
|||||||
OPERATING
EXPENSES:
|
||||||||||
General
and administrative
|
15,208,546
|
2,432,928
|
1,941,920
|
|||||||
Sales
and marketing
|
1,422,345
|
596,989
|
321,049
|
|||||||
Development
|
1,737,092
|
563,372
|
676,472
|
|||||||
|
||||||||||
Total
operating expenses
|
18,367,983
|
3,593,289
|
2,939,441
|
|
Period
From
OCTOBER
4,
2005
to
DECEMBER
31, 2005
|
Year
Ended
DECEMBER
31,
2004
|
Year
Ended
DECEMBER
31,
2003
|
|||||||
OPERATING
EXPENSES:
|
||||||||||
General
and administrative
|
$
|
169,484
|
$
|
498,074
|
$
|
443,392
|
||||
Sales
and marketing
|
36,326
|
547,526
|
324,229
|
|||||||
Research
& Development
|
87,135
|
282,359
|
183,779
|
|||||||
|
||||||||||
Total
operating expenses
|
$
|
292,945
|
$
|
1,327,959
|
$
|
951,400
|
|
Period
From
OCTOBER
18,
2005
to
DECEMBER
31, 2005
|
Year
Ended
DECEMBER
31,
2004
|
Year
Ended
DECEMBER
31,
2003
|
|||||||
OPERATING
EXPENSES:
|
||||||||||
General
and administrative
|
$
|
166,930
|
$
|
630,502
|
$
|
618,071
|
||||
Sales
and marketing
|
98,182
|
323,003
|
240,593
|
|||||||
Development
|
115,936
|
593,746
|
468,986
|
|||||||
|
||||||||||
Total
operating expenses
|
$
|
381,048
|
$
|
1,547,251
|
$
|
1,327,650
|
|
Year
Ended
DECEMBER
31,
2005
|
Year
Ended
DECEMBER
31,
2004
|
Year
Ended
DECEMBER
31,
2003
|
|||||||
OTHER
INCOME (EXPENSE):
|
||||||||||
Interest
income (expense), net
|
$
|
(80,414
|
)
|
$
|
(119,389
|
)
|
(186,248
|
)
|
||
Gain
on debt forgiveness
|
556,215
|
249,395
|
492,757
|
|||||||
Gain
on disposal of asset
|
419
|
-
|
-
|
|||||||
|
||||||||||
Total
other income
|
$
|
476,220
|
$
|
130,006
|
306,509
|
Page
number
|
|
REPORT
OF INDEPENDENT REGISTERED
|
|
PUBLIC
ACCOUNTING FIRM
|
F-2
|
CONSOLIDATED
BALANCE SHEETS
|
F-3
|
CONSOLIDATED
STATEMENTS OF OPERATIONS
|
F-4
|
CONSOLIDATED
STATEMENTS OF
|
|
STOCKHOLDERS’
(DEFICIT) EQUITY
|
F-5
|
CONSOLIDATED
STATEMENTS OF CASH FLOWS
|
F-7
|
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
|
F-8
|
Assets
|
December
31,
2005
|
December
31,
2004
|
|||||
CURRENT
ASSETS:
|
|||||||
Cash
and cash equivalents
|
$
|
1,434,966
|
$
|
173,339
|
|||
Restricted
Cash
|
230,244
|
-
|
|||||
Marketable
securities
|
-
|
395,000
|
|||||
Accounts
receivable, net
|
504,979
|
30,904
|
|||||
Other
accounts receivable
|
74,876
|
43,455
|
|||||
Prepaid
expenses
|
370,225
|
24,850
|
|||||
Total
current assets
|
2,615,290
|
667,548
|
|||||
PROPERTY
AND EQUIPMENT, net
|
664,062
|
75,636
|
|||||
INTANGIBLE
ASSETS, net
|
11,032,129
|
16,623
|
|||||
OTHER
ASSETS
|
246,598
|
13,894
|
|||||
TOTAL
ASSETS
|
$
|
14,558,079
|
$
|
773,701
|
|||
Liabilities
and Stockholders’ Equity (Deficit)
|
|||||||
CURRENT
LIABILITIES:
|
|||||||
Accounts
payable
|
$
|
855,904
|
$
|
186,382
|
|||
Accrued
payroll
|
42,559
|
110,079
|
|||||
Accrued
payroll taxes, penalties and interest
|
-
|
574,707
|
|||||
Short-Term
portion of Capital Lease
|
14,707
|
-
|
|||||
Short-Term
Portion of Subscription Financing Payable
|
855,060
|
-
|
|||||
Accrued
Registration Rights Penalty
|
129,945
|
-
|
|||||
Current
Portion of Notes Payable
|
2,189,986
|
-
|
|||||
Deferred
revenue
|
785,324
|
721,689
|
|||||
Accrued
liabilities
|
48,674
|
120
|
|||||
Total
current liabilities
|
4,922,159
|
1,592,977
|
|||||
|
|||||||
LONG-TERM
LIABILITIES:
|
|||||||
Long-Term
Portion of Notes Payable
|
2,331,152
|
-
|
|||||
Long
Term Portion of Subscription Financing Payable
|
541,110
|
-
|
|||||
Unearned
Revenue
|
91,027
|
-
|
|||||
Deferred
compensation, notes payable and interest
|
-
|
1,091,814
|
|||||
Total
long-term liabilities
|
2,963,289
|
1,091,814
|
|||||
Total
liabilities
|
7,885,448
|
2,684,791
|
|||||
|
|||||||
STOCKHOLDERS'
EQUITY (DEFICIT):
|
|||||||
Common
stock, $.001 par value, 45,000,000 shares authorized, shares issued
and
outstanding:
December
31, 2005 -15,607,230, December 31, 2004 —11,631,832
|
15,607
|
11,632
|
|||||
Additional
paid-in capital
|
58,982,617
|
34,809,832
|
|||||
Accumulated
deficit
|
(52,325,593
|
)
|
(36,732,554
|
)
|
|||
Total
stockholders' equity (deficit)
|
6,672,631
|
(1,911,090
|
)
|
||||
TOTAL
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
|
$
|
14,558,079
|
$
|
773,701
|
Year
Ended
December
31,
2005
|
Year
Ended
December
31,
2004
|
Year
Ended
December
31,
2003
|
||||||||
REVENUES:
|
||||||||||
Integration
fees
|
$
|
798,178
|
$
|
374,055
|
$
|
367,617
|
||||
Syndication
fees
|
402,847
|
176,471
|
115,544
|
|||||||
Subscription
fees
|
914,674
|
-
|
-
|
|||||||
Professional
Services fees
|
435,486
|
-
|
-
|
|||||||
OEM
revenue
|
48,000
|
55,936
|
48,620
|
|||||||
Web
services
|
-
|
62,365
|
207,570
|
|||||||
Other
revenues
|
102,791
|
4,093
|
8,815
|
|||||||
Related
party revenues
|
-
|
330,050
|
513,057
|
|||||||
Total
revenues
|
2,701,976
|
1,002,970
|
1,261,223
|
|||||||
|
||||||||||
COST
OF REVENUES
|
400,822
|
211,616
|
187,064
|
|||||||
|
||||||||||
GROSS
PROFIT
|
2,301,154
|
791,354
|
1,074,159
|
|||||||
|
||||||||||
OPERATING
EXPENSES:
|
||||||||||
General
and administrative
|
15,208,546
|
2,432,928
|
1,941,920
|
|||||||
Sales
and marketing
|
1,422,345
|
596,989
|
321,049
|
|||||||
Development
|
1,737,092
|
563,372
|
676,472
|
|||||||
|
||||||||||
Total
operating expenses
|
18,367,983
|
3,593,289
|
2,939,441
|
|||||||
|
||||||||||
LOSS
FROM OPERATIONS
|
(16,066,829
|
)
|
(2,801,935
|
)
|
(1,865,282
|
)
|
||||
|
||||||||||
OTHER
INCOME (EXPENSE):
|
||||||||||
Interest
expense
|
(80,414
|
)
|
(119,389
|
)
|
(186,248
|
)
|
||||
Gain
on debt forgiveness
|
556,215
|
249,395
|
492,757
|
|||||||
Gain
on sale of investment
|
419
|
-
|
-
|
|||||||
|
||||||||||
Total
other income
|
476,220
|
130,006
|
306,509
|
|||||||
NET
LOSS
|
(15,590,609
|
)
|
(2,671,929
|
)
|
(1,558,773
|
)
|
||||
Preferred
stock dividends and accretion of discount on preferred
stock
|
-
|
(2,215,625
|
)
|
(2,321,744
|
)
|
|||||
Deemed
dividends related to beneficial conversion features of redeemable
convertible preferred stock
|
-
|
-
|
(495,319
|
)
|
||||||
Accretive
dividend issued in connection with registration rights
agreement
|
-
|
(206,085
|
)
|
-
|
||||||
Converted
preferred stock inducement cost
|
-
|
(3,225,410
|
)
|
-
|
||||||
Net
loss attributed to Common Stockholders
|
$
|
(15,590,609
|
)
|
$
|
(8,319,049
|
)
|
$
|
(4,375,836
|
)
|
|
NET
LOSS PER SHARE:
|
||||||||||
Net
loss attributed to Common Stockholders -
Basic
and Diluted
|
$
|
(1.20
|
)
|
$
|
(0.82
|
)
|
$
|
(0.61
|
)
|
|
|
||||||||||
SHARES
USED IN COMPUTING NET LOSS PER SHARE:
|
||||||||||
Basic
and Diluted
|
12,960,006
|
10,197,334
|
7,145,047
|
|
Year
Ended
December
31,
2005
|
Year
Ended
December
31,
2004
|
Year
Ended
December
31,
2003
|
|||||||
CASH
FLOWS FROM OPERATING ACTIVITIES:
|
||||||||||
Net
loss
|
$
|
(15,590,609
|
)
|
$
|
(2,671,929
|
)
|
$
|
(1,558,773
|
)
|
|
Adjustments
to reconcile net loss to net
|
||||||||||
cash
provided by (used in) operating
|
||||||||||
activities:
|
||||||||||
Depreciation
& Amortization
|
465,800
|
51,531
|
59,852
|
|||||||
Shares
ssued for services in lieu of cash payments
|
9,767,500
|
-
|
-
|
|||||||
Registration
Rights Penalty Expense
|
129,947 | - | - | |||||||
Loss
on disposal of property and equipment
|
-
|
8,855
|
-
|
|||||||
Common
shares, warrants, or options issued in lieu of
Compensation
|
826,739
|
168,530
|
1,010,109
|
|||||||
Common
shares issued for extension of loan
|
75,000
|
75,000
|
||||||||
Common
shares issued in exchange for warrants
|
-
|
350,000
|
-
|
|||||||
Issuance
of warrants
|
19,231
|
-
|
-
|
|||||||
Gain
on debt forgiveness
|
(556,634
|
)
|
-
|
-
|
||||||
Changes
in assets and liabilities:
|
||||||||||
Accounts
receivable
|
(76,396
|
)
|
51,672
|
24
|
||||||
Related
party receivable
|
-
|
38,682
|
(38,682
|
)
|
||||||
Other
accounts receivable
|
4,687
|
(43,455
|
)
|
-
|
||||||
Prepaid
expenses
|
(194,519
|
)
|
(24,850
|
)
|
-
|
|||||
Other
assets
|
39,964
|
(500
|
)
|
1,447
|
||||||
Legal
settlement obligation
|
-
|
(181,563
|
)
|
(100,937
|
)
|
|||||
Deferred
revenue
|
(592,010
|
)
|
(225,951
|
)
|
(267,326
|
)
|
||||
Accounts
payable
|
569,727
|
(321,274
|
)
|
(513,533
|
)
|
|||||
Accrued
payroll
|
(110,079
|
)
|
46,946
|
(27,155
|
)
|
|||||
Accrued
payroll taxes payable
|
(30,741
|
)
|
(961,196
|
)
|
289,103
|
|||||
Accrued
interest payable
|
-
|
(126,871
|
)
|
97,201
|
||||||
Accrued
expenses
|
68,715
|
-
|
-
|
|||||||
Accrued
rent payable
|
-
|
-
|
(50,000
|
)
|
||||||
Deferred
compensation payable
|
(1,091,814
|
)
|
80,166
|
335,223
|
||||||
Net
cash (used in) provided by operating
|
||||||||||
Activities
|
(6,350,492
|
)
|
(3,686,207
|
)
|
(688,447
|
)
|
||||
CASH
FLOWS FROM INVESTING ACTIVITIES:
|
||||||||||
Purchase
of property and equipment
|
(378,862
|
)
|
(82,710
|
)
|
(1,588
|
)
|
||||
Smart
CRM Non-Compete Agreement
|
(90,000
|
)
|
-
|
-
|
||||||
Cash
acquired from iMart at Acquisition
|
32,028
|
-
|
-
|
|||||||
Redemption
(Purchase) of marketable securities
|
395,000
|
(395,000
|
)
|
-
|
||||||
Net
cash used in investing activities
|
(41,834
|
)
|
(477,710
|
)
|
(1,588
|
)
|
CASH
FLOWS FROM FINANCING ACTIVITIES:
|
||||||||||
Borrowings
on notes payable
|
-
|
-
|
190,000
|
|||||||
Repayments
on notes payable
|
(326,157
|
)
|
(350,000
|
)
|
(10,000
|
)
|
||||
Cash
reserved for iMart purchase price payment - restricted
cash
|
(230,244
|
)
|
-
|
-
|
||||||
Payments
on Capital Lease
|
(2,287
|
)
|
-
|
-
|
||||||
(Repayments)
borrowings from stockholder
|
-
|
(86,480
|
)
|
39,686
|
||||||
Issuance
of Common Stock
|
8,212,641
|
4,672,250
|
544,895
|
|||||||
Net
cash provided by financing activities
|
7,653,953
|
4,235,770
|
764,581
|
|||||||
NET
INCREASE IN CASH
AND
CASH EQUIVALENTS
|
1,261,627
|
71,853
|
74,546
|
|||||||
CASH
AND CASH EQUIVALENTS,
BEGINNING
OF PERIOD
|
173,339
|
101,486
|
26,940
|
|||||||
CASH
AND CASH EQUIVALENTS,
END
OF PERIOD
|
$
|
1,434,966
|
$
|
173,339
|
$
|
101,486
|
||||
Supplemental
disclosures:
|
||||||||||
Cash
payment during the year for interest:
|
$
|
158,232
|
$
|
47,447
|
$
|
89,047
|
||||
Cash
payment during the year for income taxes:
|
$
|
-
|
-
|
-
|
||||||
Non-cash
financing activities:
|
||||||||||
Notes
Payables issued related to Acquisitions
|
$
|
3,659,301
|
-
|
-
|
||||||
Notes
Payable for iMart Non-Compete Agreements
|
$
|
715,998
|
-
|
-
|
||||||
Assets
and Liabilities of Computility acquired for stock:
|
||||||||||
Accounts
Receivable, net
|
$
|
6,894
|
-
|
-
|
||||||
Other
Current Assets
|
$
|
10,742
|
-
|
-
|
||||||
P,P&E,
net
|
$
|
388,128
|
-
|
-
|
||||||
Other
Assets
|
$
|
246,228
|
-
|
-
|
||||||
Accounts
Payable
|
$
|
109,897
|
-
|
-
|
||||||
Subscription
& Notes Payable
|
$
|
1,807,327
|
-
|
-
|
||||||
Other
Liabilities
|
$
|
29,549
|
-
|
-
|
||||||
Non-cash
accretion of preferred
|
-
|
-
|
||||||||
stock
redemption value
|
$
|
-
|
$
|
2,215,625
|
$
|
2,321,744
|
||||
Conversion
of preferred stock
|
||||||||||
into
Common Stock
|
$
|
-
|
$
|
19,724,839
|
$
|
-
|
||||
Conversion
of preferred stock
|
||||||||||
inducement
cost
|
$
|
-
|
$
|
3,225,410
|
$
|
-
|
|
Common
Stock
$.001
Par
|
Additional
Paid-
In
Capital
|
Accumulated
Deficit
|
Total
|
|||||||||
BALANCE,
JANUARY 1, 2003
|
$ |
7,037
|
$ |
9,299,678
|
$ |
(28,575,038
|
)
|
$ |
(19,268,323
|
)
|
|||
Issuance
of restricted stock
|
75
|
49,500
|
-
|
49,575
|
|||||||||
Interest
expense associated with notes payable
|
150
|
74,850
|
-
|
75,000
|
|||||||||
Accretion
of redeemable preferred
|
-
|
(2,321,744
|
)
|
-
|
(2,321,744
|
)
|
|||||||
Issuance
of stock option to consultant
|
-
|
9,109
|
-
|
9,109
|
|||||||||
Issuance
of warrant to financial advisor
|
-
|
466,000
|
-
|
466,000
|
|||||||||
Issuance
of stock options to officers
|
-
|
535,000
|
-
|
535,000
|
|||||||||
Deemed
dividend related to beneficial conversion features of redeemable
convertible preferred stock
|
-
|
495,319
|
(495,319
|
)
|
-
|
||||||||
Net
loss
|
-
|
-
|
(1,558,773
|
)
|
(1,558,773
|
)
|
|||||||
BALANCE,
DECEMBER 31, 2003
|
7,262
|
8,607,712
|
(30,629,130
|
)
|
(22,014,156
|
)
|
|||||||
Conversion
of preferred stock into
|
|||||||||||||
Common
Stock
|
2,949
|
19,721,890
|
-
|
19,724,839
|
|||||||||
Conversion
of preferred stock
|
|||||||||||||
inducement
cost
|
-
|
3,225,410
|
(3,225,410
|
)
|
-
|
||||||||
Interest
expense associated with notes
|
|||||||||||||
Payable
|
-
|
75,000
|
-
|
75,000
|
|||||||||
Accretion
of redeemable preferred
|
-
|
(2,215,625
|
)
|
-
|
(2,215,625
|
)
|
|||||||
Issuance
of Common Stock, net of issuance costs of $183,350
|
1,289
|
4,762,355
|
-
|
4,763,644
|
|||||||||
Issuance
of Common Stock rescinded
|
(29
|
)
|
(99,973
|
)
|
-
|
(100,002
|
)
|
||||||
Issuance
of stock options to officers
|
-
|
161,000
|
-
|
161,000
|
|||||||||
Issuance
of stock options to members of advisory board
|
-
|
6,034
|
-
|
6,034
|
|||||||||
Issuance
of Common Stock to former holders of preferred stock pursuant to
registration rights agreement
|
58
|
206,027
|
(206,085
|
)
|
-
|
||||||||
Conversion
of Bank One warrant into Common Stock
|
100
|
349,900
|
-
|
350,000
|
|||||||||
Issuance
of stock option to consultant
|
-
|
1,495
|
-
|
1,495
|
|||||||||
Exercise
of warrants
|
3
|
8,607
|
-
|
8,610
|
|||||||||
Net
loss
|
(2,671,929
|
)
|
(2,671,929
|
)
|
|||||||||
BALANCE,
DECEMBER 31, 2004
|
11,632
|
34,809,832
|
(36,732,554
|
)
|
(1,911,090
|
)
|
|||||||
Issuance
of Common Stock, net of issuance costs of $630,525
|
1,392
|
6,719,614
|
-
|
6,721,006
|
|||||||||
Exercise
of warrants
|
580
|
1,305,518
|
-
|
1,306,098
|
|||||||||
Issuance
of warrants
|
-
|
19,231
|
-
|
19,231
|
|||||||||
Issuance
of Common Stock for services
|
40
|
343,408
|
-
|
343,448
|
|||||||||
Issuance
of Common Stock to employees as bonus
|
4
|
40,106
|
-
|
40,110
|
|||||||||
Exercise
of stock options
|
16
|
57,734
|
-
|
57,750
|
|||||||||
Issuance
of IR Shares-GIC
|
625
|
5,174,375
|
-
|
5,175,000
|
|||||||||
Issuance
of IR Shares-Berkley
|
625
|
4,561,875
|
-
|
4,562,500
|
|||||||||
iMart
Acquisition
|
205
|
1,815,688
|
-
|
1,815,893
|
|||||||||
Computility
Acquisition
|
484
|
3,534,271
|
-
|
3,534,755
|
|||||||||
Issuance
of Shares to Spectrum Technologies
|
3
|
22,497
|
-
|
22,500
|
|||||||||
Elimination
of iMart (Bayberry) Equity not acquired
|
-
|
-
|
(2,430
|
)
|
(2,430
|
)
|
|||||||
Issuance
of options to consultants
|
-
|
570,014
|
-
|
570,014
|
|||||||||
Issuance
of Common Stock for technology license
|
1
|
7,499
|
-
|
7,500
|
|||||||||
Gift
of shares to charitable organization
|
-
|
955
|
-
|
955
|
|||||||||
Net
Loss
|
(15,590,609
|
)
|
(15,590,609
|
)
|
|||||||||
BALANCE
DECEMBER 31, 2005
|
$ |
15,607
|
$ |
58,982,617
|
$ |
(52,325,593
|
)
|
$ |
6,672,631
|
Office
equipment
|
5
years
|
Computer
Software
|
3
years
|
Computer
Hardware
|
5
years
|
Furniture
and fixtures
|
7
years
|
Automobiles
|
5
years
|
|
Year
ended
December
31,
2005
|
Year
ended
December
31,
2004
|
Year
ended
December
31,
2003
|
|||||||
Net
loss attributed to
|
||||||||||
Common
Stockholders:
|
||||||||||
As
reported
|
$
|
(15,590,609
|
)
|
$
|
(8,319,049
|
)
|
$
|
(4,375,836
|
)
|
|
Add:
Compensation cost
|
||||||||||
recorded
at intrinsic
|
||||||||||
Value
|
-
|
161,000
|
535,000
|
|||||||
Less:
Compensation cost using
|
||||||||||
the
fair value method
|
(581,494
|
)
|
(455,301
|
)
|
(961,234
|
)
|
||||
Pro
forma
|
$
|
(16,172,103
|
)
|
$
|
(8,613,350
|
)
|
$
|
(4,802,070
|
)
|
|
Year
ended
December
31,
2005
|
Year
ended
December
31,
2004
|
Year
ended
December
31,
2003
|
|||||||
Reported
net loss attributed to
|
||||||||||
Common
Stockholders:
|
||||||||||
Basic
and diluted
|
$
|
(1.20
|
)
|
$
|
(0.82
|
)
|
$
|
(0.61
|
)
|
|
|
||||||||||
Pro
forma net loss per share:
|
||||||||||
Basic
and diluted
|
$
|
(1.25
|
)
|
$
|
(0.84
|
)
|
$
|
(0.67
|
)
|
|
Year
ended
December
31,
2005
|
Year
Ended
December
31,
2004
|
Year
Ended
December
31,
2003
|
|||||||
Dividend
yield
|
0.00%
|
|
0.00%
|
|
0.00%
|
|
||||
Expected
volatility
|
60.20%
|
|
0.00%
|
|
0.00%
|
|
||||
Risk
free interest rate
|
4.25%
|
|
4.23%
|
|
4.01%
|
|
||||
Expected
lives (years)
|
9.5
|
8.9
|
5.0
|
Amortized
Cost
|
Fair
Value
|
||||||
Municipal
bonds - redeemed February 2005
|
$
|
395,000
|
$
|
395,000
|
|
|
December
31,
2005
|
|
|
December
31,
2004
|
|
|
December
31,
2003
|
|
Office
equipment
|
$
|
155,054
|
|
$
|
16,187
|
|
$
|
10,026
|
|
Furniture
and fixtures
|
|
7,125
|
|
7,125
|
|
|
7,125
|
|
|
Computer
software
|
|
550,775
|
|
|
393,629
|
|
|
389,064
|
|
Computer
hardware and equipment
|
|
1,252,089
|
|
|
663,723
|
|
|
684,998
|
|
Automobiles
|
|
29,504
|
|
|
29,504
|
|
|
—
|
|
|
|
1,994,547
|
|
|
1,110,168
|
|
|
1,091,213
|
|
Less
accumulated depreciation
|
|
(1,330,485
|
)
|
|
(1,034,532
|
)
|
|
(1,042,266
|
)
|
Property
and equipment, net
|
$
|
664,062
|
|
$
|
75,636
|
|
$
|
48,947
|
|
Asset
Category
|
Value
Assigned
|
Residual
Value
|
Weighted
Avg
Useful
Life
|
Accumulated
Amortization
|
Carrying
Value
|
Customer
Base
|
$
2,504,989
|
$0
|
5.9
|
$
106,744
|
$
2,398,245
|
Technology
|
$
1,249,842
|
$0
|
3
|
$
100,468
|
$
1,149,374
|
Non-Compete
|
$
891,785
|
$0
|
3.9
|
$
49,260
|
$
842,525
|
Copyright
& Trademark
|
$
50,339
|
$0
|
10
|
$
34,313
|
$
16,026
|
Trade
Name *
|
$
1,180,499
|
n/a
|
n/a
|
n/a
|
$
1,180,499
|
Work
Force &
Goodwill
*
|
$
5,489,963
|
n/a
|
n/a
|
n/a
|
$ 5,489,963
|
TOTALS
|
$
11,367,417
|
$290,785
|
$11,076,632
|
December
31,
2005
|
December
31,
2004
|
||||||
Deferred
Compensation
|
$
|
0
|
$
|
949,777
|
|||
Accrued
interest payable on deferred compensation
|
0
|
142,037
|
|||||
Total
deferred compensation
|
$
|
0
|
$
|
1,091,814
|
Note
Description
|
S/T
Portion
|
L/T
Portion
|
Total
|
Maturity
|
Rate
|
iMart
Purchase Price Note
|
$1,559,657
|
$1,718,139
|
$3,277,796
|
Jan
2007
|
8.0%
|
iMart
Non-Compete Note
|
352,041
|
375,921
|
727,962
|
Oct
2007
|
8.0%
|
Acquisition
Fee - iMart
|
118,461
|
95,847
|
214,308
|
Oct
2007
|
8.0%
|
Acquisition
Fee - Computility
|
97,327
|
53,745
|
151,072
|
Mar
2007
|
8.0%
|
Subscription
Factor Payable
|
855,060
|
541,110
|
1,396,170
|
Various
|
9%
- 10.5%
|
Floor
Plan Agreement
|
62,500
|
87,500
|
150,000
|
Feb
2008
|
Prime+4
|
2006:
|
$
|
3,045,046
|
||
2007:
|
2,775,167
|
|||
2008:
|
97,095
|
|||
TOTAL:
|
$
|
5,917,308
|
2006
|
$
|
186,400
|
||
Total
|
$
|
186,400
|
|
Shares
|
Weighted
Average
Exercise
Price
|
|||||
|
|
|
|||||
BALANCE,
January 1, 2003
|
771,400
|
$
|
4.69
|
||||
Granted
|
720,000
|
$
|
1.39
|
||||
Forfeited
|
(132,500
|
)
|
$
|
2.27
|
|||
BALANCE,
December 31, 2003
|
1,358,900
|
$
|
3.18
|
||||
Granted
|
755,000
|
$
|
3.07
|
||||
Forfeited
|
(345,000
|
)
|
$
|
4.12
|
|||
BALANCE,
December 31, 2004
|
1,768,900
|
$
|
2.78
|
||||
Granted
|
1,535,950
|
$
|
7.98
|
||||
Exercised
|
(16,500
|
)
|
$
|
3.50
|
|||
Forfeited
|
(560,400
|
)
|
$
|
3.61
|
|||
BALANCE,
December 31, 2005
|
2,727,950
|
$
|
5.34
|
|
|
|
|
Currently
Exercisable
|
|
Exercise
Price
|
Number
of
Shares
Outstanding
|
Average
Remaining
Contractual
Life
(Years)
|
Weighted
Average
Exercise
Price
|
Number
of
Shares
|
Weighted
Average
Exercise
Price
|
|
|
|
|
|
|
$
1.30 - $ 1.43
|
670,000
|
3.0
|
$
1.40
|
670,000
|
$
1.40
|
$
3.50
|
497,500
|
8.2
|
$
3.50
|
240,748
|
$
3.50
|
$
5.00
|
286,700
|
8.8
|
$
4.88
|
50,200
|
$
4.88
|
$
7.00 to $ 7.75
|
200,500
|
9.7
|
$
7.17
|
39,250
|
$
2.76
|
$
8.20 to $ 8.61
|
811,750
|
9.5
|
$
8.57
|
5,000
|
$
8.61
|
$
9.60 to $ 9.82
|
261,500
|
2.5
|
$
9.82
|
52,500
|
$
13.15
|
|
|
December
31,
2005
|
|
December
31,
2004
|
|
December
31,
2003
|
|
|||
Net
current deferred income tax
assets
relate to:
|
|
|
|
|
|
|
|
|||
Depreciation
|
|
$
|
6,000
|
$
|
3,000
|
|
$
|
18,000
|
|
|
Stock
Based Expenses
|
|
|
226,000
|
|
|
226,000
|
|
|
-
|
|
Accrued
liabilities
|
|
|
-
|
|
|
-
|
|
|
390,000
|
|
Net
operating loss carryforwards
|
|
|
13,111,000
|
|
|
11,015,000
|
|
|
9,909,000
|
|
Total
|
|
|
13,343,000
|
|
|
11,244,000
|
|
|
10,317,000
|
|
Less
valuation allowance
|
|
|
13,343,000
|
|
11,244,000
|
|
|
10,317,000
|
|
|
Net
current deferred income tax
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
|
Year
Ended
December
31,
2005
|
Year
Ended
December
31,
2004
|
Year
Ended
December
31,
2003
|
|||||||
Statutory
federal tax rate
|
34
|
%
|
34
|
%
|
34
|
%
|
||||
Tax
benefit computed at statutory rate
|
$
|
(5,257,000
|
)
|
$
|
(908,000
|
)
|
$
|
(530,000
|
)
|
|
State
income tax benefit, net of federal effect
|
(704,000
|
)
|
(121,000
|
)
|
(71,000
|
)
|
||||
Change
in valuation allowance
|
2,140,000
|
927,000
|
171,000
|
|||||||
Stock/Option Based Expense | 3,808,000 | - | 386,000 | |||||||
Other
adjustments
|
-
|
77,000
|
-
|
|||||||
Other
permanent differences
|
13,000
|
25,000
|
44,000
|
|||||||
Total
|
$
|
-
|
$
|
-
|
$
|
-
|
|
|
|
|
Year
Ended December 31, 2005
|
|
|||||
|
|
|
|
Revenues
|
|
%
of Total
Revenues
|
|
|||
Customer
A
|
|
|
Subscription
|
|
$
|
319,874
|
|
|
11.8
|
%
|
Others
|
|
|
Various
|
|
|
2,382,102
|
|
|
88.2
|
%
|
Total
|
|
|
|
|
$
|
2,701,976
|
|
|
100.0
|
%
|
|
|
|
|
Year
Ended December 30, 2004
|
|
|||||
|
|
|
|
Revenues
|
|
%
of Total
Revenues
|
|
|||
Customer
E
|
|
|
Integration
|
|
$
|
330,050
|
|
|
32.9
|
%
|
Others
|
|
|
Various
|
|
|
672,920
|
|
|
67.1
|
%
|
Total
|
|
|
|
|
$
|
1,002,970
|
|
|
100.0
|
%
|
|
|
|
|
Year Ended
December 30, 2003
|
|
|||||
|
|
|
|
Revenues
|
|
%
of Total
Revenues
|
|
|||
Customer
E
|
|
|
Integration
|
|
$
|
342,847
|
|
|
27.2
|
%
|
Customer
F
|
|
|
Consulting
|
|
|
150,000
|
|
|
11.9
|
%
|
Others
|
|
|
Various
|
|
|
768,376
|
|
|
60.9
|
%
|
Total
|
|
|
|
|
$
|
1,261,223
|
|
|
100.0
|
%
|
|
Year
Ended
December
31,
2005
|
Year
Ended
December
31,
2004
|
Year
Ended
December
31,
2003
|
|||||||
|
|
|
|
|||||||
Smart
II, Ltd. ("SIL"), formerly
known
as Smart Revenue Europe
Ltd.
- Integration fees
|
$
|
-
|
$
|
330,050
|
$
|
342,857
|
||||
|
||||||||||
Parson
and Shearson, Inc. -
Consulting
Services
|
-
|
-
|
150,000
|
|||||||
|
||||||||||
Small
Business Lending Institute
Consulting
Services
|
-
|
-
|
20,200
|
|||||||
Total
Related Party Revenues
|
$
|
-
|
$
|
330,050
|
$
|
513,057
|
||||
|
|
Year
Ended
December
31,
2005
|
Year
Ended
December
31,
2004
|
Year
Ended
December
31,
2003
|
|||||||
|
|
|
|
|||||||
Nen,
Inc. - consulting fees included in sales and marketing expense related
to
strategic international sales and marketing services
|
$
|
17,500
|
$
|
70,000
|
$
|
27,083
|
||||
|
||||||||||
Nen,
Inc. - consulting fees included in general and administrative expense
related to assisting Smart Online with obtaining additional equity
financing
|
-
|
62,000
|
-
|
|||||||
|
||||||||||
Small
Business Loan Institute - consulting fees included in general and
administrative expense
|
-
|
30,000
|
-
|
|||||||
|
||||||||||
Smart
II, Ltd. - Moving expenses, reseller payment, and technical co-development
work
|
-
|
75,000
|
43,300
|
|||||||
|
||||||||||
Interest
expense incurred on loans from officer
|
-
|
4,649
|
2,007
|
|||||||
Total
Related Party Expenses
|
$
|
17,500
|
$
|
241,649
|
$
|
72,390
|
||||
|
Assets:
|
||||
Accounts
Receivable, net
|
$
|
6,894
|
||
Other
Current Assets
|
10,742
|
|||
P,P
& E, net
|
388,128
|
|||
Other
Assets
|
246,228
|
|||
TOTAL
ASSETS
|
$
|
651,992
|
||
Liabilities
& Equity
|
||||
Accounts
Payable
|
$
|
109,897
|
||
Subscriptions
Payable
|
1,657,327
|
|||
Note
Payable
|
150,000
|
|||
Other
Liabilities
|
29,549
|
|||
TOTAL
LIABILITIES
|
|
1,946,773
|
||
Equity
|
(1,294,781
|
)
|
||
TOTAL
LIABILITIES AND EQUITY
|
$
|
651,992
|
Consideration
Paid (including acquisition costs and liabilities assumed)
|
$
|
5,800,640
|
||
Tangible
Assets Acquired
|
(651,992
|
)
|
||
Identifiable
Intangible Assets Acquired
|
(1,424,220
|
)
|
||
Goodwill
|
$
|
3,724,428
|
Assets
|
||||
Cash
|
$
|
32,035
|
||
Accounts
Receivable
|
356,781
|
|||
Prepaid
Registration
|
77,038
|
|||
Other
Current Assets
|
8,882
|
|||
Total
Current Assets
|
474,736
|
|||
P,P&E,
net
|
64,099
|
|||
Other
Assets
|
25,000
|
|||
TOTAL
ASSETS
|
$
|
563,835
|
||
Liabilities
|
||||
Accounts
Payable
|
$
|
36,759
|
||
Deferred
Revenue
|
533,447
|
|||
Other
Current Liabilities
|
1,641
|
|||
Total
Current Liabilities
|
571,847
|
|||
Loan
Payable
|
65,000
|
|||
TOTAL
LIABILITIES
|
$
|
636,847
|
||
Equity
|
(73,012
|
)
|
||
TOTAL
LIABILITIES & EQUITY
|
$
|
563,835
|
Consideration
Paid (including acquisition costs and liabilities assumed)
|
$
|
6,732,265
|
||
Tangible
Assets Acquired
|
(563,835
|
)
|
||
Identifiable
Intangible Assets Acquired
|
(4,402,895
|
)
|
||
Goodwill
|
$
|
1,765,535
|
Smart
CRM
|
Smart
Commerce
|
Smart
Online
|
Pro
forma
Unaudited
|
|
Revenue
|
$
1,986,522
|
$
3,380,609
|
$
1,002,970
|
$6,370,101
|
Net
Income / (Loss) (a)
|
445,494
|
1,423,691
|
(2,671,929)
|
(802,744)
|
Net
Income / (Loss) Attributable
To
Common Stockholders
|
445,494
|
1,423,691
|
(8,319,049)
|
(6,449,864)
|
EPS
|
$
(.59)
|
Smart
CRM
|
Smart
Commerce
|
Smart
Online
|
Pro
forma
Unaudited
|
|
Revenue
|
$
2,018,379
|
$
3,706,738
|
$
1,353,107
|
$
7,078,224
|
Net
Income / (Loss) (a)
|
(28,026)
|
1,487,279
|
(15,919,694)
|
(14,460,441)
|
Net
Income / (Loss) Attributable
To
Common Stockholders
|
(28,026)
|
1,487,279
|
(15,919,694)
|
(14,460,441)
|
EPS
|
$
(1.07)
|
2005
|
2004
|
||||||||||||||||||||||||||||
1st
Qtr
|
|
2nd
Qtr
|
|
3rd
Qtr
|
|
4th
Qtr
|
|
1st
Qtr
|
|
2nd
Qtr
|
|
3rd
Qtr
|
|
|
|
4th
Qtr
|
|
||||||||||||
Revenues
|
$
|
253,238
|
$
|
406,116
|
$
|
344,692
|
$
|
1,697,930
|
$
|
249,728
|
$
|
235,845
|
$
|
237,545
|
$
|
279,852
|
|||||||||||||
Gross
Profit
|
$
|
221,511
|
$
|
384,205
|
$
|
318,892
|
$
|
1,376,546
|
$
|
192,709
|
$
|
192,437
|
$
|
178,722
|
$
|
227,486
|
|||||||||||||
Loss
from Operations
|
$
|
(847,484
|
)
|
$
|
(874,306
|
)
|
$
|
(2,188,462
|
)
|
$
|
(12,156,577
|
)
|
$
|
(519,325
|
)
|
$
|
(707,688
|
)
|
$
|
(1,075,619
|
)
|
(1
|
)
|
$
|
(499,303
|
)
|
(2)
|
||
Net
Loss Attributable
to
Common Stockholders
|
$
|
(294,145
|
)
|
$
|
(860,819
|
)
|
$
|
(2,180,856
|
)
|
$
|
(12,254,789
|
)
|
$
|
(6,040,464
|
)
|
$
|
(692,786
|
)
|
$
|
(1,289,108
|
)
|
$
|
(296,691
|
)
|
|||||
Net
Loss Per Share-
|
|||||||||||||||||||||||||||||
Basic
and Diluted
|
(0.02
|
)
|
(0.07
|
)
|
(0.17
|
)
|
(0.84
|
)
|
(0.83
|
)
|
(0.06
|
)
|
(0.12
|
)
|
(0.03
|
)
|
|||||||||||||
Number
of Shares Used
in
Per Share Calculation
|
11,829,610
|
12,387,333
|
12,832,365
|
14,667,137
|
7,321,707
|
10,722,507
|
11,089,101
|
11,630,471
|
|||||||||||||||||||||
(1)
Includes $350,000 of expense related to the issuance of shares
of Common
Stock to a company that received warrants for services
rendered.
|
||||||||||||||||
(2)
Includes $1,009,960 of stock based compensation expense related
to options
and warrants issued to employees and consultants.
|
· |
Commencing
a search for independent directors with public company experience
to join
the Board of Directors.
|
· |
Joining
the National Association of Corporate Directors (“NACD”) and requiring
corporate governance director training through the NACD and/or other
appropriate professional advisors, including but not limited to mandatory,
individualized management coaching and education for our Chief Executive
Officer. This will include training that results in NACD certification
of
each Director as a NACD certified public company director, and annual
education to maintain such certification.
|
· |
Implementing
mandatory, periodic educational training for management and directors
by
outside legal counsel and other appropriate professional advisors
regarding:
|
o |
SEC
and Nasdaq disclosure and corporate governance
requirements;
|
o |
Our
Conflicts of Interest Policy;
|
o |
Our
Securities Trading Policy; and
|
o |
Our
Code of Ethics and Corporate Conduct
Policy.
|
· |
Reviewing,
revising and clarifying our Securities Trading
Policy.
|
· |
Adopting
a written policy setting forth limits on the Chief Executive Officer’s
authority to engage in certain business transactions and agreements
without prior Board approval, including clear guidelines on actions
requiring Board approval.
|
· |
Requiring
our legal department or outside legal counsel to review and approve
all
material agreements prior to execution.
|
· |
Requiring
that all material agreements be reviewed by our Chief Financial Officer
prior to execution, including an analysis of proper accounting for
revenue
or expense recognition where applicable.
|
· |
Requiring
written confirmation of compliance with our Code of Ethics and Conflicts
of Interest Policy on a quarterly basis from all members of management
and
the Board of Directors.
|
· |
Sending
quarterly reminders to all employees regarding the location of Code
of
Ethics and Conflicts of Interest Policy and our complaint and
investigation procedures for accounting, internal control, fraud
or
auditing matters.
|
· |
Creating
checklists of standard closing, cash receipt/disbursement and disclosure
procedures for material transactions, including entry into material
agreements, private placements and
acquisitions.
|
· |
Creating
a diligence checklist to be used when entering into any arrangements,
agreements or other transactions with third parties, designed to
ensure
that we are dealing with reputable and established third
parties.
|
· |
Retaining
a law firm that has particular depth and expertise in corporate governance
and securities matters to augment our legal department, which is
currently
without a General Counsel. We are considering whether and when to
initiate
a search for a General Counsel.
|
· |
Creating
the position of Chief Compliance Officer with primary responsibility
to
administer and set compliance policy, monitor and assess control
deficiency identification and remediation and report to the Audit
Committee on matters concerning legal, corporate governance and ethical
compliance. We are currently evaluating whether the responsibilities
and
duties of this position can be fulfilled by a current member of management
or whether it is necessary to seek a qualified outside
candidate.
|
· |
Conducting
a review of our annual directors’ and officers’ questionnaire and using
the questionnaire in evaluating the independence of any potential
board
candidates.
|
Name
|
Age
|
Position
|
Dennis
Michael Nouri (1)(2)
|
52
|
President,
Chief Executive Officer,
and
Director
|
Henry
Nouri (2)
|
50
|
Executive
Vice President
|
Thomas
Furr
|
39
|
Chief
Operating Officer, Director
|
Anil
Kamath
|
39
|
Chief
Technology Officer
|
Joan
Keston (4)
|
52
|
General
Counsel and Secretary
|
Scott
Whitaker (3)
|
36
|
Chief
Financial Officer and Principal Accounting Officer
|
Gary
Mahieu
|
38
|
Chief
Operating Officer and Vice President of Smart Commerce, Inc., a wholly
owned subsidiary
|
David
S. Y. Sarna (5)
|
56
|
Director
|
Jeff
LeRose
|
62
|
Director
|
Frank
Coll (6)
|
47
|
Director
|
(1) |
Michael
Nouri’s full name is Dennis Michael
Nouri.
|
(2) |
Dennis
Michael Nouri and Henry Nouri are
brothers.
|
(3) |
Mr.
Whitaker was appointed as the Chief Financial officer on an interim
basis
on February 24, 2005. On March 21, 2006, Nicholas Sinigaglia was
appointed
by the Board of Directors to be the Chief Financial Officer of the
Company, and his functions include acting as the chief accounting
officer
of the Company. Mr. Whitaker continues to serve as the controller
of the
Company, but not as an executive
officer.
|
(4) |
Effective
June 1, 2006, Joan Keston is no longer an employee of the
Company.
|
(5) |
Effective
June 23, 2006, David Sarna resigned as a
director.
|
(6) |
Effective
March 5, 2006, Frank Coll resigned as a
director.
|
(a)
|
|
Had
any bankruptcy petition filed by or against any business of which
such
person was a general partner or executive officer either at the time
of
the bankruptcy or within two years prior to that time;
|
(b)
|
|
Been
convicted in a criminal proceeding or subject to a pending criminal
proceeding;
|
(c)
|
|
Been
subject to any order, judgment, or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction, permanently
or temporarily enjoining, barring, suspending or otherwise limiting
his
involvement in any type of business, securities, futures, commodities
or
banking activities; and
|
(d)
|
|
Been
found by a court of competent jurisdiction (in a civil action), the
Securities and Exchange Commission or the Commodity Futures Trading
Commission to have violated a federal or state securities or commodities
law, and the judgment has not been reversed, suspended, or
vacated.
|
Name
|
Audit
Committee
|
Compensation
Committee
|
Corporate
Governance Nominating Committee
|
Michael
Nouri
|
|||
Thomas
Furr
|
|||
Jeff
LeRose
|
Chair
|
Chair
|
Chair
|
SUMMARY
COMPENSATION TABLE
|
||||||||||
NAME
AND PRINCIPAL POSITION
|
YEAR
|
ANNUAL
COMPENSATION
|
LONG-TERM
COMPENSATION
|
|||||||
AWARDS
|
ALL
OTHER COMPENSATION
|
|||||||||
SALARY
|
BONUS
|
OTHER
ANNUAL COMPEN-
SATION
|
SECURITIES
UNDERLYING
OPTIONS
(#)
|
|||||||
Dennis
Michael Nouri
(1)
,
President
and CEO
|
2005
|
$
|
170,000
|
$
|
0
|
$
|
0
|
100,000
|
$
|
0
|
2004
|
$
|
170,000
|
$
|
0
|
$
|
0
|
0
|
$
|
14,616.70
|
|
2003
|
$
|
150,000
|
$
|
0
|
$
|
0
|
250,000
|
$
|
14,684.00
|
|
Henry
Nouri
(2)
,
Executive
Vice President
|
2005
|
$
|
150,000
|
$
|
0
|
$
|
0
|
100,000
|
$
|
0
|
2004
|
$
|
150,000
|
$
|
0
|
$
|
0
|
0
|
$
|
9,303.00
|
|
2003
|
$
|
150,000
|
$
|
0
|
$
|
0
|
250,000
|
$
|
9,636.00
|
|
Ronna
Loprete
(4)
,
Secretary
|
2005
|
$
|
120,000
|
$
|
46,152
|
$
|
0
|
0
|
$
|
0
|
2004
|
$
|
120,000
|
$
|
0
|
$
|
0
|
75,000
|
$
|
0
|
|
2003
|
$
|
120,000
|
$
|
0
|
$
|
0
|
0
|
$
|
0
|
|
Anil
Kamath,
Chief
Technology Officer
|
2005
|
$
|
125,000
|
$
|
85,000
|
$
|
0
|
50,000
|
$
|
0
|
2004
|
$
|
125,000
|
$
|
0
|
$
|
0
|
75,000
|
$
|
0
|
|
2003
|
$
|
100,000
|
$
|
0
|
$
|
0
|
None
|
$
|
0
|
|
Tom
Furr
(3)
,
COO
|
2005
|
$
|
136,800
|
$
|
0
|
$
|
0
|
50,000
|
$
|
0
|
2004
|
$
|
120,000
|
$
|
0
|
$
|
0
|
75,000
|
$
|
0
|
|
2003
|
$
|
120,000
|
$
|
0
|
$
|
0
|
0
|
(1)
|
The
amounts of salary in the table above reflect amounts that accrued
under an
employment agreement. Because Dennis Michael Nouri agreed to allow
us to defer part of his accrued compensation he received only the
following amounts of salary: $113,750 in 2004 and $35,000 in 2003.
These
deferred amounts, plus $55,950 interest, were paid in March 2005.
Refer to
“Item 13.
CERTAIN
RELATIONSHIPS AND INTERESTED TRANSACTIONS
”
for a description of salary deferrals. “Other Compensation” consists
of payments for health insurance for family members of Mr. Nouri.
Until
December 2005, the wife of Mr. Nouri was also an employee of the
Company.
She received the following compensation: $120,000 per year in salary
for
each of 2003, 2004 and 2005 (including amounts of deferred salary
that
accrued under an employment agreement and was paid with $13,936 in
interest in 2005); and 75,000 options in 2004. Ms. Loprete also received
a
bonus of $46,152 for her service to the Company upon her
departure.
|
(2)
|
The
amounts of salary in the table above reflect amounts that accrued
under an
employment agreement. Because Henry Nouri agreed to allow us to
defer part of his accrued compensation he received only the following
amounts of salary: $102,083 in 2004 and $35,000 in 2003. These
deferred amounts, plus $59,582 interest, were paid in March 2005.
Refer to
“Item 13.
CERTAIN
RELATIONSHIPS AND INTERESTED TRANSACTIONS
”
for a description of salary deferrals. “Other Compensation” consists of
payments for health insurance for family members of Mr.
Nouri.
|
(3)
|
The
amounts of salary in the table above reflect amounts that accrued
under an
employment agreement. Because Tom Furr agreed to allow us to defer
part of his accrued compensation he received only the following amounts
of
salary: $68,305 in 2004 and $63,998 in 2003. These deferred amounts,
plus $18,073 interest, were paid in March 2005. Refer to “ITEM 13.
CERTAIN
RELATIONSHIPS AND INTERESTED TRANSACTIONS
”
for a description of salary deferrals.
|
(4)
|
Ronna
Loprete agreed to allow us to defer part of her accrued compensation
she
received only the following amounts of salary: $107,500 in 2004,
and
$90,000 in 2003. These deferred amounts, plus $13,936 interest, were
paid
in March 2005. Refer to “Item 13.
CERTAIN
RELATIONSHIPS AND INTERESTED TRANSACTIONS
”
for a description of salary deferrals. Ms. Loprete is the wife of
our
Chief Executive Officer, Michael Nouri. She resigned as Secretary
effective July 22, 2005, and as Vice President and Director effective
September 13, 2005, and was no longer an employee of ours effective
December 31, 2005. She received a bonus of $46,152 for her service
to the
Company upon her departure.
|
Potential
Realizable Value At
Assumed
Annual Rates of Stock
Price
Appreciation For Option
Term
|
|||||||||||||||||||
Named
Executive
Officer
|
Number
of
Securities
Underlying
Options
Granted
|
%
of Total
Options
Granted
To
Employees
in
Fiscal
Year
|
Exercise
Price
|
Expiration
Date
(1)
|
5%
(2)
|
10%
(2)
|
|||||||||||||
Michael
Nouri
|
100,000
|
10%
|
|
$
|
8.61
|
07/22/15
|
$
|
541,478
|
$
|
1,372,212
|
|||||||||
Henry
Nouri
|
100,000
|
10%
|
|
$
|
8.61
|
07/22/15
|
$
|
541,478
|
$
|
1,372,212
|
|||||||||
Thomas
Furr
|
50,000
|
5%
|
|
$
|
8.61
|
07/22/15
|
$
|
270,739
|
$
|
686,106
|
|||||||||
Anil
Kamath
|
50,000
|
5%
|
|
$
|
8.61
|
07/22/15
|
$
|
270,739
|
$
|
686,106
|
(1)
|
The
options listed were granted under our 2004 Equity Compensation Plan.
Each
option expires on the earlier of the expiration date shown or 90
days
after termination of the recipient’s employment, except in cases of death
or disability. The option may be exercised to purchase vested shares
only.
Upon termination of employment, the option is forfeited with respect
to
any shares not then vested, except in cases of death or disability.
In the
event of a change in control, as defined in the option agreements,
the
option becomes fully vested and exercisable.
|
(2)
|
In
accordance with SEC rules, these columns show gains that could accrue
for
the respective options, assuming that the market price of our common
stock
appreciates from the date of grant over the maximum life of the
option at an annualized rate of 5% and 10%, respectively. If the
stock price does not increase above the exercise price at the time
of
exercise, realized value to the named executives from these options
will
be zero. Rules of the SEC permit us to use 5% and 10% in this
table. There can be no assurance that the price of our stock will
increase and this table does not constitute any prediction of the
future
value of our stock by us.
|
Number
of Securities
Underlying
Unexercised
Options
at
December 31, 2005
|
Value
of Unexercised
In-the-Money
Options at
December
31, 2005
(1)
|
||||||||||||||||||
Name
|
Shares
Acquired
Upon
Exercise
|
Value
Realized
|
Exercisable
|
Unexercisable
|
Exercisable
|
Unexercisable
|
|||||||||||||
Michael
Nouri
|
0
|
n/a
|
250,000
|
100,000
|
$
|
1,892,500
|
$
|
39,000
|
|||||||||||
Henry
Nouri
|
0
|
n/a
|
250,000
|
100,000
|
$
|
1,892,500
|
$
|
39,000
|
|||||||||||
Thomas
Furr
|
0
|
n/a
|
75,000
|
50,000
|
$
|
577,500
|
$
|
19,500
|
|||||||||||
Anil
Kamath
|
0
|
n/a
|
75,000
|
50,000
|
$
|
577,500
|
$
|
19,500
|
|||||||||||
Ronna Loprete |
0
|
n/a
|
75,300 | 0 | $ | 578,700 | $ | 0 |
(1)
|
|
Based
on the closing price of $9.00 per share for our Common Stock on December
30, 2005, minus the exercise price, multiplied by the number of shares
issued upon the exercise of, or subject to, the option, without taking
into account any taxes that may be payable in connection with the
transaction.
|
(2) | Ronna Loprete ceased to be an employee of the Company effective December 31, 2005. The options that have been issued to her have expired and can no longer be exercised. |
Beneficial
Owner
Name
and Address
|
Amount
and
Nature
of
Beneficial
Ownership
(1)(2)
|
Percent
of Class
|
|
Dennis
Michael Nouri
(3)(4)(5)
c/o
Smart Online, Inc.
2530
Meridian Parkway
Durham,
North Carolina 27713
|
3,322,028
|
20
|
%
|
Henry
Nouri
(3)(6)
c/o
Smart Online, Inc.
2530
Meridian Parkway
Durham,
North Carolina 27713
|
3,111,985
|
19
|
%
|
Thomas
Furr
(7)
c/o
Smart Online, Inc.
2530
Meridian Parkway
Durham,
North Carolina 27713
|
420,637
|
3
|
%
|
Anil
Kamath
(8)
c/o
Smart Online, Inc.
2530
Meridian Parkway
Durham,
North Carolina 27713
|
285,000
|
2
|
%
|
Atlas
Capital SA
(9)
116
Rue du Rhone
CH-1204
Geneva,
Switzerland
|
2,257,950
|
13
|
%
|
Doron
Roethler
(10)
c/o
Michal Raviv at
Granot,
Strauss, Adar & Co.
28
Bezalel Street
Ramat
Gan 52521, Israel
|
1,754,735
|
11
|
%
|
Joan
Keston
(11)
c/o
Smart Online, Inc.
2530
Meridian Parkway
Durham,
North Carolina 27713
|
0
|
0
|
%
|
David
E. Y. Sarna
(12)
c/o
Smart Online, Inc.
2530
Meridian Parkway
Durham,
North Carolina 27713
|
38,050
|
0
|
%
|
Jeffrey
W. LeRose
(13)
c/o
Smart Online, Inc.
2530
Meridian Parkway
Durham,
North Carolina 27713
|
7,500
|
0
|
%
|
Eric
Nouri
(14)
c/o
Smart Online, Inc.
2530
Meridian Parkway
Durham,
North Carolina 27713
|
35,100
|
0
|
%
|
Jose
Collazo
(15)
c/o
Smart Online, Inc.
2530
Meridian Parkway
Durham,
North Carolina 27713
|
285,900
|
2
|
%
|
Gary
Mahieu
(16)
c/o
Smart Online, Inc.
2530
Meridian Parkway
Durham,
North Carolina 27713
|
48,127
|
0
|
%
|
Nicholas
A. Sinigaglia
(17)
c/o
Smart Online, Inc.
2530
Meridian Parkway
Durham,
North Carolina 27713
|
0
|
0
|
%
|
All
officers and directors as a group (13 persons)
|
8,725,028
|
53
|
%
|
(1)
|
All
shares are common stock.
|
(2)
|
The
preceding table was prepared based solely upon the information furnished
to us by officers, directors and stockholders as of July 7, 2006
and from
corporate stock transfer ledgers. The number and percentage of shares
beneficially owned is determined in accordance with Rule 13d-3 of
the
Securities Exchange Act of 1934, and the information is not necessarily
indicative of beneficial ownership for any other purpose. Under Rule
13d-3, a beneficial owner of a security includes any person who,
directly
or indirectly, through any contract, arrangement, understanding,
relationship, or otherwise has or shares: (i) voting power, which
includes
the power to vote, or to direct the voting of shares; and (ii) investment
power, which includes the power to dispose or direct the disposition
of
shares. Certain shares may be deemed to be beneficially owned by
more than
one person (e.g., if persons share the power to vote or the power
to
dispose of the shares). In addition, shares are deemed to be beneficially
owned by a person if the person has the right to acquire the shares
(for
example, upon exercise of an option or a warrant) within 60 days
of the
date as of which the information is provided. In computing the percentage
ownership of any person, the number of shares outstanding is deemed
to
include the amount of shares beneficially owned by such person (and
only
such person) by reason of these acquisition rights. As a result,
the
percentage of outstanding shares of any person as shown in this table
does
not necessarily reflect the person's actual ownership or voting power
with
respect to the number of shares of common stock actually outstanding
on
July 7, 2006. As of July 7, 2006, there were 16,679,031 shares issued
and
outstanding and our officers and directors beneficially owned
approximately 870,000 shares which can be acquired upon exercise
of stock
options within sixty (60) days after July 7, 2006, which options
were
treated the same as outstanding shares in calculating the percentage
ownership of our officers and directors.
|
(3)
|
Includes
2,841,984 shares owned by American Investment Holding Group, owned
by
Michael and Henry Nouri, and as to which they share the power to
vote and
the power to dispose of such shares.
|
(4)
|
Includes
87,043 shares owned by Charter Holding, LLC, which is a member-managed
limited liability company in which Michael Nouri is the sole member.
Mr.
Nouri's membership interest in Charter Holding LLC is subject to
a
Membership Interest Pledge Agreement dated November 1, 2005 between
Mr.
Nouri and Leon Sokolic pursuant to which Mr. Nouri retains all voting
power with respect to the membership interest unless there is a default
under the agreement, at which time Mr. Sokolic gains voting and investment
power with respect to Mr. Nouri's membership interest in Charter
Holding,
LLC, and hence beneficial ownership of the 87,043 Smart Online shares
owned by Charter Holding, LLC. The Membership Interest Pledge Agreement
was entered into between Mr. Nouri and Mr. Sokolic in order to secure
payment of the loan from Mr. Sokolic to Mr. Nouri, which is described
under Item 13 of this report, and a default in repayment of the loan
is a
default under the agreement. This amount also includes 23,000 shares
of
common stock owned by a trust for which Michael Nouri is the trustee
and
is not a beneficiary. This amount does not include 265,631 shares
owned by
Ronna Loprete, wife of Michael Nouri.
|
(5)
|
Includes
270,000 shares which can be acquired upon the exercise of options
which
can be exercised at any time within the sixty (60) days after July
7,
2006. Does not include 80,000 shares subject to options which cannot
be
exercised within sixty (60) days after July 7, 2006.
|
(6)
|
Includes
270,000 shares which can be acquired upon the exercise of options
which
can be exercised at any time within the sixty (60) days after July
7,
2006. Does not include 80,000 shares subject to options which cannot
be
exercised within sixty (60) days after July 7, 2006.
|
(7)
|
Includes
85,000 shares which can be acquired upon the exercise of options
which can
be exercised at any time within the sixty (60) days after July 7,
2006.
Does not include 40,000 shares subject to options which cannot be
exercised within sixty (60) days after July 7, 2006.
|
(8)
|
Includes
85,000 shares which can be acquired upon exercise of options which
can be
exercised at any time within sixty (60) days after July 7, 2006.
Does not include 40,000 shares subject to options which cannot be
exercised within sixty (60) days after July 7, 2006.
|
(9)
|
Atlas
Capital SA had the right to require two other stockholders to purchase
all
its Common Stock and warrants under certain circumstances. This right
was
terminated by agreement with Atlas Capital SA on March 18, 2005.
Refer to
“Certain Relationships and Related Transactions” for a description of this
put agreement.
|
(10)
|
Includes
(i) 1,323,619 shares owned by Greenleaf Ventures Ltd., a British
Virgin
Islands company, owned by Doron Roethler, (ii) 121,116 shares owned
by
Crystal Management Ltd., a company registered in Anguilla, owned
by Doron
Roethler, and (iii) 310,000 shares of common stock owned directly
by Doron
Roethler.
|
(11)
|
During
her employment, Ms. Keston was issued options to purchase up to a
total of
100,000 shares. However, since Ms. Keston departed before any shares
vested, she cannot exercise any of these options.
|
(12)
|
Includes
3,700 shares owned by W-Two, Ltd., 150 shares held in an IRA for
the
benefit of David Sarna, and 200 shares owned directly by David E.Y.
Sarna;
and 34,000 shares which can be acquired upon exercise of options
which can
be exercised within sixty (60) days after July 7, 2006.
|
(13)
|
Includes
7,500 shares subject to options which can be exercised within sixty
(60)
days after July 7, 2006. Does not include 2,500 shares subject to
options
which cannot be exercised within sixty (60) days after July 7,
2006.
|
(14)
|
Includes
100 shares owned by Eric Nouri, and 35,000 shares which can be acquired
upon exercise of options which can be exercised within sixth (60)
days
after July 7, 2006. Does not include 90,000 shares subject to options
which cannot be exercised within sixty (60) days after July 7,
2006.
|
(15)
|
Includes
85,200 shares which can be acquired upon exercise of options which
can be
exercised at any time within sixty (60) days after July 7, 2006.
Does not
include 40,000 shares subject to options which cannot be exercised
within
sixty (60) days after July 7, 2006.
|
(16)
|
Does
not include 105,365 shares held by Christine Mahieu, wife of Gary
Maheiu.
|
(17)
|
Includes
50,000 shares subject to options which cannot be exercised within
sixty
(60) days after July 7, 2006.
|
Plan
category
|
Number
of securities to be
issued
upon exercise of
outstanding
options,
warrants
and rights
(1)
(a)
|
Weighted
average
exercise
price of
outstanding
options,
warrants
and rights
(b)
|
Number
of securities
remaining
available for
future
issuance under
equity
compensation
plans
(excluding securities
reflected
in column (a))
(1)
(c)
|
Equity
Compensation plans approved by security holders
|
2,477,950
(2)
|
$5.09
|
3,213,250
(3)
|
Equity
Compensation plans not approved by security holders
|
313,550
(4)
|
$8.35
|
N/A
|
Total
|
2,791,500
|
|
3,213,250
|
· |
Any
of our directors or officers;
|
· |
Any
person proposed as a nominee for election as a
director;
|
· |
Any
person who beneficially owns, directly or indirectly, shares carrying
more
than 10% of the voting rights attached to our outstanding shares
of Common
Stock;
|
· |
Any
of our promoters;
|
· |
Any
relative or spouse of any of the foregoing persons who lives in the
same
house as such person.
|
Shares
of
Common
Stock
|
Total
Purchase
Price
|
Date
of
Purchase
|
|||||||||
Atlas
|
90,909
|
|
$
|
499,999.50
|
7/22/2005
|
||||||
Atlas
|
50,000
|
|
$
|
275,000
|
9/7/2005
|
||||||
Atlas
|
237,428
|
(1)
|
|
$
|
830,998
|
9/12/2005
|
|||||
Atlas
|
63,500
|
|
$
|
349,250
|
9/13/2005
|
||||||
Atlas
|
400,000
|
$
|
1,000,000
|
3/30/2006
|
|||||||
Atlas
|
400,000
|
$
|
1,000,000
|
6/29/2006
|
Exhibit
No.
|
Description
|
3.1
|
Articles
of Incorporation, as restated (incorporated herein by reference
to Exhibit
3.2 to our Registration Statement on Form SB-2, as filed with
the SEC on
September 30, 2004))
|
3.2
|
Bylaws,
as amended (incorporated herein by reference to Exhibit 3.2 to
our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
3.3
|
First
Amendment to Amended and Restated Bylaws of Smart Online,
Inc.
|
4.1
|
Specimen
Common Stock Certificate (incorporated herein by reference to
Exhibit 4.1
to our Registration Statement on Form SB-2, as filed with the
SEC on
September 30, 2004)
|
10.1*
|
2004
Equity Compensation Plan (incorporated herein by reference to
Exhibit 10.1
to our Registration Statement on Form SB-2, as filed with the
SEC on
September 30, 2004)
|
10.2*
|
Form
of Incentive Stock Option Agreement under 2004 Equity Compensation
Plan
|
10.3*
|
Form
of Non-Qualified Stock Option Agreement under 2004 Equity Compensation
Plan
|
10.4*
|
2001
Equity Compensation Plan (terminated as to future grants April
15, 2004)
(incorporated herein by reference to Exhibit 10.2 to our Registration
Statement on Form SB-2, as filed with the SEC on September 30,
2004)
|
10.5*
|
1998
Equity Compensation Plan (terminated as to future grants effective
April
15, 2004) (incorporated herein by reference to Exhibit 10.3 to
our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.6
|
Form
of Reorganization, Lock-Up Proxy and Release Agreement, dated
January 1,
2004, and certain stockholders of Smart Online, Inc. (incorporated
herein
by reference to Exhibit 10.4 to our Registration Statement on
Form SB-2,
as filed with the SEC on September 30, 2004)
|
10.7
|
Form
of Lock-up Agreement dated January 1, 2004 between Smart Online
and
stockholders of Smart Online (incorporated herein by reference
to Exhibit
10.5 to our Registration Statement on Form SB-2, as filed with
the SEC on
September 30, 2004)
|
10.8
|
Form
of Subscription Agreement with lock-up provisions between Smart
Online and
investors (incorporated herein by reference to Exhibit 10.6 to
our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.9
|
Form
of Registration Rights Agreement dated as of February 1, 2004
between
Smart Online (incorporated herein by reference to Exhibit 10.7
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.10*
|
Employment
Agreement dated April 1, 2004 with Michael Nouri (incorporated
herein by
reference to Exhibit 10.8 to our Registration Statement on Form
SB-2, as
filed with the SEC on September 30,
2004)
|
10.11*
|
Employment
Agreement dated April 1, 2004 with Henry Nouri (incorporated
herein by
reference to Exhibit 10.9 to our Registration Statement on Form
SB-2, as
filed with the SEC on September 30, 2004)
|
10.12*
|
Employment
Agreement dated April 1, 2004 with Ronna Loprete (incorporated
herein by
reference to Exhibit 10.10 to our Registration Statement on Form
SB-2, as
filed with the SEC on September 29, 2004)
|
10.13*
|
Employment
Agreement dated May 1, 2004 with Anil Kamath (incorporated herein
by
reference to Exhibit 10.12 to our Registration Statement on Form
SB-2, as
filed with the SEC on September 30, 2004)
|
10.14*
|
Letter
agreement, dated December 20, 2005, with Anil Kamath amending
his
Employment Agreement
|
10.15*
|
Employment
Agreement dated June 21, 2005 with Joan Keston
|
10.16*
|
Employment
Agreement dated March 21, 2006 with Nicholas A. Sinigaglia (incorporated
herein by reference to Exhibit 10.1 to our Current Report on
Form 8-K, as
filed with the SEC on March 27, 2006)
|
10.17*
|
Security
Agreement dated October 13, 2003 with Smart Online as the Debtor
and
Michael Henry Nouri, Thomas Furr, Ronna Loprete and Eric Nouri
as the
Secured Parties (incorporated herein by reference to Exhibit
10.13 to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.18*
|
$418,749.93
Promissory Note dated April 30, 2004 from Smart Online as the
Debtor to
Michael Nouri (incorporated herein by reference to Exhibit 10.14
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.19*
|
$64,602.90
Promissory Note dated April 30, 2004 from Smart Online as the
Debtor to
Michael Nouri (incorporated herein by reference to Exhibit 10.15
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.20*
|
$398,383.27
Promissory Note dated April 30, 2004 from Smart Online as the
Debtor to
Henry Nouri (incorporated herein by reference to Exhibit 10.16
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.21*
|
$116,507.60
Promissory Note dated April 30, 2004 from Smart Online as the
Debtor
Thomas Furr (incorporated herein by reference to Exhibit 10.17
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.22*
|
$92,500
Promissory Note dated April 30, 2004 from Smart Online as the
Debtor to
Ronna Loprete (incorporated herein by reference to Exhibit 10.18
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.23*
|
$47,
740.18 Promissory Note dated April 30, 2004 from Smart Online
as the
Debtor to Eric Nouri (incorporated herein by reference to Exhibit
10.19 to
our Registration Statement on Form SB-2, as filed with the SEC
on
September 30, 2004)
|
10.24*
|
Standstill
and Interest Modification Agreement dated December 19, 2003 with
Michael
Nouri (incorporated herein by reference to Exhibit 10.20 to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.25*
|
Standstill
and Interest Modification Agreement dated December 19, 2003 with
Henry
Nouri (incorporated herein by reference to Exhibit 10.21 to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.26*
|
Standstill
and Interest Modification Agreement dated December 19, 2003 with
Thomas
Furr (incorporated herein by reference to Exhibit 10.22 to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.27*
|
Standstill
and Interest Modification Agreement dated December 19, 2003 with
Ronna
Loprete (incorporated herein by reference to Exhibit 10.23 to
our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.28*
|
Standstill
and Interest Modification Agreement dated December 19, 2003 with
Eric
Nouri (incorporated herein by reference to Exhibit 10.24 to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.29
|
Asset
Purchase Agreement dated as of October 4, 2005 by and among Smart
Online,
Inc., SmartCRM, Computility, Inc. and certain shareholders of
Computility,
Inc. (incorporated herein by reference to Exhibit 2.1 to our
Current
Report on Form 8-K, as filed with the SEC on October 7,
2005)
|
10.30
|
Stock
Purchase Agreement dated as of October 17, 2005 by and among
Smart Online,
Inc., iMart Incorporated and the shareholders of iMart Incorporated
(incorporated herein by reference to Exhibit 2.1 to our Current
Report on
Form 8-K, as filed with the SEC on October 24, 2005)
|
10.31*
|
Employment
Agreement dated as of October 17, 2005 by and among Smart Online,
Inc.,
iMart Incorporated and Gary Mahieu (incorporated herein by reference
to
Exhibit 2.2 to our Current Report on Form 8-K, as filed with
the SEC on
October 24, 2005)
|
10.32
|
Letter
Agreement dated February 23, 2005 by and between Smart Online,
Inc. and
Berkley Financial Services (BFS) Ltd. for financial advisory
services
|
10.33
|
Consulting
Agreement, dated October 4, 2005, by and between Smart Online,
Inc. and
Berkley Financial Services Ltd. (incorporated herein by reference
to
Exhibit 99.1 to our Current Report on Form 8-K, as filed with
the SEC on
November 10, 2005)
|
10.34
|
Consulting
Agreement, dated October 26, 2005, by and between Smart Online,
Inc. and
General Investments Capital (GIC) Ltd. (incorporated herein by
reference
to Exhibit 99.2 to our Current Report on Form 8-K, as filed with
the SEC
on November 10, 2005)
|
10.35
|
Settlement
Agreement, effective May 31, 2006, by and between Smart Online, Inc.
and General Investments Capital (GIC) Ltd. (incorporated herein
by
reference to Exhibit 99.1 to our Current Report on Form 8-K,
as filed with
the SEC on June 6, 2006)
|
10.36
|
Form
of Subscription Agreement, Subscriber Rights Agreement, and Dribble
Out
Agreement, dated June 29 and July 6, 2006, by and between Smart
Online,
Inc. and certain investors
|
10.37
|
Form
of Subscription Agreement, Subscriber Rights Agreement, and Dribble
Out
Agreement, dated March 30, 2006, by and between Smart Online,
Inc. and
Atlas Capital, SA
|
10.38
|
Form
of Subscription Agreement, Registration Rights Agreement, and
Dribble Out
Agreement, dated July 19, September 7 and September 13, 2005,
by and
between Smart Online, Inc. and Atlas Capital, SA
|
10.39
|
Form
of Subscription Agreement, Registration Rights Agreement, and
Dribble Out
Agreement, dated September 7, 2005, by and between Smart Online,
Inc. and
Credit Suisse Zurich
|
10.40
|
Form
of Subscription Agreement, Registration Rights Agreement, and
Dribble Out
Agreement, and Exhibits thereto, dated February 25, 2005, by
and between
Smart Online, Inc. and The BlueLine Fund
|
10.41
|
Form
of Subscription Agreement, Registration Rights Agreement, and
Dribble Out
Agreement, dated August 30, September 10, and September 28, 2004,
by and
between Smart Online, Inc. and certain investors
|
10.42*
|
Indemnification
Agreement, dated April ,14 2006, by and between Smart Online,
Inc. and
David E.Y. Sarna
|
10.43*
|
Indemnification
Agreement, dated April ,14 2006, by and between Smart Online,
Inc. and
Joan Keston
|
10.44*
|
Indemnification
Agreement, dated January 26, 2006, by and between Smart Online,
Inc. and
Tom Furr
|
10.45*
|
Indemnification
Agreement, dated January 26, 2006, by and between Smart Online,
Inc. and
Henry Nouri
|
10.46*
|
Indemnification
Agreement, dated April 14, 2006, by and between Smart Online,
Inc. and
Scott Whitaker
|
10.47*
|
Indemnification
Agreement, dated January 26, 2006, by and between Smart Online,
Inc. and
Michael Nouri
|
21.1
|
Subsidiaries
of Smart Online, Inc.
|
23.1
|
Consent
of Independent Registered Public Accounting Firm
|
31.1
|
Certification
of Chief Executive Officer Pursuant to Rule 13a-14/15d-14 as
Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
|
31.2
|
Certification
of Chief Financial Officer Pursuant to Rule 13a-14/15d-14 as
Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
|
32.1
|
Certification
of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350,
as Adopted
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. [This
exhibit
is being furnished pursuant to Section 905 of the Sarbanes-Oxley
Act of
2002 and shall not, except to the extent required by that Act,
be deemed
to be incorporated by reference into any document or filed herewith
for
the purposes of liability under the Securities Exchange Act of
1934, as
amended, or the Securities Act of 1933, as amended, as the case
may
be.]
|
32.2
|
Certification
of Chief Financial Officer to Pursuant to 18 U.S.C. Section 1350,
as
Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of
2002 [This
exhibit is being furnished pursuant to Section 905 of the Sarbanes-Oxley
Act of 2002 and shall not, except to the extent required by that
Act, be
deemed to be incorporated by reference into any document or filed
herewith
for the purposes of liability under the Securities Exchange Act
of 1934,
as amended, or the Securities Act of 1933, as amended, as the
case may
be.]
|
SMART
ONLINE, INC.
Registrant
|
||
By:
|
/s/
Michael Nouri
|
|
Michael
Nouri, Principal Executive Officer
July
10, 2006
|
||
|
|
Exhibit
No.
|
Description
|
3.1
|
Articles
of Incorporation, as restated (incorporated herein by reference
to Exhibit
3.2 to our Registration Statement on Form SB-2, as filed with
the SEC on
September 30, 2004))
|
3.2
|
Bylaws,
as amended (incorporated herein by reference to Exhibit 3.2 to
our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
3.3
|
First
Amendment to Amended and Restated Bylaws of Smart Online,
Inc.
|
4.1
|
Specimen
Common Stock Certificate (incorporated herein by reference to
Exhibit 4.1
to our Registration Statement on Form SB-2, as filed with the
SEC on
September 30, 2004)
|
10.1*
|
2004
Equity Compensation Plan (incorporated herein by reference to
Exhibit 10.1
to our Registration Statement on Form SB-2, as filed with the
SEC on
September 30, 2004)
|
10.2*
|
Form
of Incentive Stock Option Agreement under 2004 Equity Compensation
Plan
|
10.3*
|
Form
of Non-Qualified Stock Option Agreement under 2004 Equity Compensation
Plan
|
10.4*
|
2001
Equity Compensation Plan (terminated as to future grants April
15, 2004)
(incorporated herein by reference to Exhibit 10.2 to our Registration
Statement on Form SB-2, as filed with the SEC on September 30,
2004)
|
10.5*
|
1998
Equity Compensation Plan (terminated as to future grants effective
April
15, 2004) (incorporated herein by reference to Exhibit 10.3 to
our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.6
|
Form
of Reorganization, Lock-Up Proxy and Release Agreement, dated
January 1,
2004, and certain stockholders of Smart Online, Inc. (incorporated
herein
by reference to Exhibit 10.4 to our Registration Statement on
Form SB-2,
as filed with the SEC on September 30, 2004)
|
10.7
|
Form
of Lock-up Agreement dated January 1, 2004 between Smart Online
and
stockholders of Smart Online (incorporated herein by reference
to Exhibit
10.5 to our Registration Statement on Form SB-2, as filed with
the SEC on
September 30, 2004)
|
10.8
|
Form
of Subscription Agreement with lock-up provisions between Smart
Online and
investors (incorporated herein by reference to Exhibit 10.6 to
our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.9
|
Form
of Registration Rights Agreement dated as of February 1, 2004
between
Smart Online (incorporated herein by reference to Exhibit 10.7
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.10*
|
Employment
Agreement dated April 1, 2004 with Michael Nouri (incorporated
herein by
reference to Exhibit 10.8 to our Registration Statement on Form
SB-2, as
filed with the SEC on September 30, 2004)
|
10.11*
|
Employment
Agreement dated April 1, 2004 with Henry Nouri (incorporated
herein by
reference to Exhibit 10.9 to our Registration Statement on Form
SB-2, as
filed with the SEC on September 30, 2004)
|
10.12*
|
Employment
Agreement dated April 1, 2004 with Ronna Loprete (incorporated
herein by
reference to Exhibit 10.10 to our Registration Statement on Form
SB-2, as
filed with the SEC on September 29, 2004)
|
10.13*
|
Employment
Agreement dated May 1, 2004 with Anil Kamath (incorporated herein
by
reference to Exhibit 10.12 to our Registration Statement on Form
SB-2, as
filed with the SEC on September 30, 2004)
|
10.14*
|
Letter
agreement, dated December 20, 2005, with Anil Kamath amending
his
Employment Agreement
|
10.15*
|
Employment
Agreement dated June 21, 2005 with Joan
Keston
|
10.16*
|
Employment
Agreement dated March 21, 2006 with Nicholas A. Sinigaglia (incorporated
herein by reference to Exhibit 10.1 to our Current Report on
Form 8-K, as
filed with the SEC on March 27, 2006)
|
10.17*
|
Security
Agreement dated October 13, 2003 with Smart Online as the Debtor
and
Michael Henry Nouri, Thomas Furr, Ronna Loprete and Eric Nouri
as the
Secured Parties (incorporated herein by reference to Exhibit
10.13 to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.18*
|
$418,749.93
Promissory Note dated April 30, 2004 from Smart Online as the
Debtor to
Michael Nouri (incorporated herein by reference to Exhibit 10.14
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.19*
|
$64,602.90
Promissory Note dated April 30, 2004 from Smart Online as the
Debtor to
Michael Nouri (incorporated herein by reference to Exhibit 10.15
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.20*
|
$398,383.27
Promissory Note dated April 30, 2004 from Smart Online as the
Debtor to
Henry Nouri (incorporated herein by reference to Exhibit 10.16
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.21*
|
$116,507.60
Promissory Note dated April 30, 2004 from Smart Online as the
Debtor
Thomas Furr (incorporated herein by reference to Exhibit 10.17
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.22*
|
$92,500
Promissory Note dated April 30, 2004 from Smart Online as the
Debtor to
Ronna Loprete (incorporated herein by reference to Exhibit 10.18
to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.23*
|
$47,
740.18 Promissory Note dated April 30, 2004 from Smart Online
as the
Debtor to Eric Nouri (incorporated herein by reference to Exhibit
10.19 to
our Registration Statement on Form SB-2, as filed with the SEC
on
September 30, 2004)
|
10.24*
|
Standstill
and Interest Modification Agreement dated December 19, 2003 with
Michael
Nouri (incorporated herein by reference to Exhibit 10.20 to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.25*
|
Standstill
and Interest Modification Agreement dated December 19, 2003 with
Henry
Nouri (incorporated herein by reference to Exhibit 10.21 to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.26*
|
Standstill
and Interest Modification Agreement dated December 19, 2003 with
Thomas
Furr (incorporated herein by reference to Exhibit 10.22 to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.27*
|
Standstill
and Interest Modification Agreement dated December 19, 2003 with
Ronna
Loprete (incorporated herein by reference to Exhibit 10.23 to
our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.28*
|
Standstill
and Interest Modification Agreement dated December 19, 2003 with
Eric
Nouri (incorporated herein by reference to Exhibit 10.24 to our
Registration Statement on Form SB-2, as filed with the SEC on
September
30, 2004)
|
10.29
|
Asset
Purchase Agreement dated as of October 4, 2005 by and among Smart
Online,
Inc., SmartCRM, Computility, Inc. and certain shareholders of
Computility,
Inc. (incorporated herein by reference to Exhibit 2.1 to our
Current
Report on Form 8-K, as filed with the SEC on October 7,
2005)
|
10.30
|
Stock
Purchase Agreement dated as of October 17, 2005 by and among
Smart Online,
Inc., iMart Incorporated and the shareholders of iMart Incorporated
(incorporated herein by reference to Exhibit 2.1 to our Current
Report on
Form 8-K, as filed with the SEC on October 24, 2005)
|
10.31*
|
Employment
Agreement dated as of October 17, 2005 by and among Smart Online,
Inc.,
iMart Incorporated and Gary Mahieu (incorporated herein by reference
to
Exhibit 2.2 to our Current Report on Form 8-K, as filed with
the SEC on
October 24, 2005)
|
10.32
|
Letter
Agreement dated February 23, 2005 by and between Smart Online,
Inc. and
Berkley Financial Services (BFS) Ltd. for financial advisory
services
|
10.33
|
Consulting
Agreement, dated October 4, 2005, by and between Smart Online,
Inc. and
Berkley Financial Services Ltd. (incorporated herein by reference
to
Exhibit 99.1 to our Current Report on Form 8-K, as filed with
the SEC on
November 10, 2005)
|
10.34
|
Consulting
Agreement, dated October 26, 2005, by and between Smart Online,
Inc. and
General Investments Capital (GIC) Ltd. (incorporated herein by
reference
to Exhibit 99.2 to our Current Report on Form 8-K, as filed with
the SEC
on November 10, 2005)
|
10.35
|
Settlement
Agreement, effective May 31, 2006, by and between Smart Online, Inc.
and General Investments Capital (GIC) Ltd. (incorporated herein
by
reference to Exhibit 99.1 to our Current Report on Form 8-K,
as filed with
the SEC on June 6, 2006)
|
10.36
|
Form
of Subscription Agreement, Subscriber Rights Agreement, and Dribble
Out
Agreement, dated June 29 and July 6, 2006, by and between Smart
Online,
Inc. and certain investors
|
10.37
|
Form
of Subscription Agreement, Subscriber Rights Agreement, and Dribble
Out
Agreement, dated March 30, 2006, by and between Smart Online,
Inc. and
Atlas Capital, SA
|
10.38
|
Form
of Subscription Agreement, Registration Rights Agreement, and
Dribble Out
Agreement, dated July 19, September 7 and September 13, 2005,
by and
between Smart Online, Inc. and Atlas Capital, SA
|
10.39
|
Form
of Subscription Agreement, Registration Rights Agreement, and
Dribble Out
Agreement, dated September 7, 2005, by and between Smart Online,
Inc. and
Credit Suisse Zurich
|
10.40
|
Form
of Subscription Agreement, Registration Rights Agreement, and
Dribble Out
Agreement, and Exhibits thereto, dated February 25, 2005, by
and between
Smart Online, Inc. and The BlueLine Fund
|
10.41
|
Form
of Subscription Agreement, Registration Rights Agreement, and
Dribble Out
Agreement, dated August 30, September 10, and September 28, 2004,
by and
between Smart Online, Inc. and certain investors
|
10.42*
|
Indemnification
Agreement, dated April ,14 2006, by and between Smart Online,
Inc. and
David E.Y. Sarna
|
10.43*
|
Indemnification
Agreement, dated April ,14 2006, by and between Smart Online,
Inc. and
Joan Keston
|
10.44*
|
Indemnification
Agreement, dated January 26, 2006, by and between Smart Online,
Inc. and
Tom Furr
|
10.45*
|
Indemnification
Agreement, dated January 26, 2006, by and between Smart Online,
Inc. and
Henry Nouri
|
10.46*
|
Indemnification
Agreement, dated April 14, 2006, by and between Smart Online,
Inc. and
Scott Whitaker
|
10.47*
|
Indemnification
Agreement, dated January 26, 2006, by and between Smart Online,
Inc. and
Michael Nouri
|
21.1
|
Subsidiaries
of Smart Online, Inc.
|
23.1
|
Consent
of Independent Registered Public Accounting Firm
|
31.1
|
Certification
of Chief Executive Officer Pursuant to Rule 13a-14/15d-14 as
Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
|
31.2
|
Certification
of Chief Financial Officer Pursuant to Rule 13a-14/15d-14 as
Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
|
32.1
|
Certification
of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350,
as Adopted
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. [This
exhibit
is being furnished pursuant to Section 905 of the Sarbanes-Oxley
Act of
2002 and shall not, except to the extent required by that Act,
be deemed
to be incorporated by reference into any document or filed herewith
for
the purposes of liability under the Securities Exchange Act of
1934, as
amended, or the Securities Act of 1933, as amended, as the case
may
be.]
|
32.2
|
Certification
of Chief Financial Officer to Pursuant to 18 U.S.C. Section 1350,
as
Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of
2002 [This
exhibit is being furnished pursuant to Section 905 of the Sarbanes-Oxley
Act of 2002 and shall not, except to the extent required by that
Act, be
deemed to be incorporated by reference into any document or filed
herewith
for the purposes of liability under the Securities Exchange Act
of 1934,
as amended, or the Securities Act of 1933, as amended, as the
case may
be.]
|
The
shares represented by this Certificate have not been registered
under the
Securities Act of 1933, as amended (the “Act”), or any state securities
law. Accordingly, the shares represented by this Certificate may
not be
sold, offered for sale, transferred, pledged or hypothecated without
an
effective registration statement for such shares under the Act
or
applicable state securities law or an opinion of counsel satisfactory
to
the Company that registration is not required under the Act or
any
applicable state securities
law.
|
The
shares represented by this Certificate have not been registered under
the
Securities Act of 1933, as amended (the “Act”), or any state securities
law. Accordingly, the shares represented by this Certificate may
not be
sold, offered for sale, transferred, pledged or hypothecated without
an
effective registration statement for such shares under the Act or
applicable state securities law or an opinion of counsel satisfactory
to
the Company that registration is not required under the Act or any
applicable state securities law.
|
Re
:
|
Letter
Agreement Extending Employment
Agreement
|
Sincerely
yours,
/s/
Michael Nouri
Michael
Nouri
CEO,
President
|
SMART
ONLINE, INC.
|
|
By:
/s/ Michael Nouri
|
|
Title:
CEO
|
|
WITNESS:
/s/ Patricia Rodenburg
|
EMPLOYEE:
/s/ Joan Keston
|
BERKLEY
FINANCIAL SERVICES (BSF) LIMITED
BY:
/s/ Illegible
Title:
by means of POA
Date:
3/3/05
Registered
Office: Post Office Box 1026
The Valley
Anguilla
British West Indies
|
SUBSCRIPTION
|
|
___________________
|
Number
of Shares of Common Stock
|
$__________________
|
Total
payment enclosed
|
______________________________
|
__________________________________
|
(Address)
|
(Name
of Subscriber)
|
______________________________
|
__________________________________
|
_____________________________
|
(Signature)
|
______________________________
|
|
(Address)
|
|
_______________________
|
|
Social
Security Number
|
SMART
ONLINE, INC.
|
|
By:
___________________________
|
|
Name:
________________________
|
|
Title:
__________________________
|
(1)
|
a
natural person whose individual net worth, or joint net worth,
with that
person’s spouse, at the time of purchase exceeds
$1,000,000;
|
(2)
|
a
natural person who had an individual income in excess of $200,000
in each
of the two most recent years or joint income with that person’s spouse in
excess of $300,000 in each of those years and has a reasonable
expectation
of reaching the same income level in the current year (the year
in which
the purchase is made);
|
(3)
|
any
trust, with total assets in excess of $5,000,000, not formed for
the
specific purpose of investing in the Company, whose purchase is
directed
by a sophisticated person having such knowledge and experience
in
financial and business matters that she is capable of evaluating
the risks
and merits of investing in the
Company;
|
(4)
|
a
director or executive officer of the
Company;
|
(5)
|
an
organization described in Section 501(c)(3) of the Internal Revenue
Code,
corporation, Massachusetts or similar business trust, or partnership,
not
formed for the specific purpose of acquiring the securities offered,
with
total assets in excess of
$5,000,000;
|
(6)
|
a
bank as defined in the Securities Act of 1933 (the “Act”), or a savings
and loan association or other institution as defined in the Act
whether
acting in its individual or fiduciary capacity; a broker or dealer
registered under the Securities Exchange Act of 1934; an insurance
company
as defined in the Act; an investment company registered under the
Investment Company act of 1940 or a business development company
as
defined in the Act; a Small Business Investment Company licensed
under the
Small Business Investment Act of 1958; an employee benefit plan
within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974,
if the investment decision is made by a plan fiduciary, which is
either a
bank, savings and loan association, an insurance company, or registered
investment adviser, or if the employee benefit plan has total assets
in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors;
|
(7)
|
a
“private business development company” as defined in the Investment
Advisers Act of 1940; or
|
(8)
|
an
entity in which all of the equity owners are accredited investors.
|
SMART
ONLINE, INC.
|
|
By:
/s/ Michael Nouri
|
|
Michael Nouri, President
|
SMART
ONLINE, INC.
|
|
By:
/s/ Michae Nouri
|
By:
/s/ Moise Dwek /s/ Asvy
Lugassy
|
Michael Nouri, President
|
Name:
Moise Dwek Avy Lugassy
|
Title:____________________
|
|
Address:
Atlas Capital SA
|
|
Rue du Rhone 116
|
|
CH - 1204 GENEVE
|
|
Tel: (+41 22) 718 1 718
Fax: (+41 22) 786 5 855
|
(1)
|
a
natural person whose individual net worth, or joint net worth, with
that
person’s spouse, at the time of purchase exceeds
$1,000,000;
|
(2)
|
a
natural person who had an individual income in excess of $200,000
in each
of the two most recent years or joint income with that person’s spouse in
excess of $300,000 in each of those years and has a reasonable expectation
of reaching the same income level in the current year (the year in
which
the purchase is made);
|
(3)
|
any
trust, with total assets in excess of $5,000,000, not formed for
the
specific purpose of investing in the Company, whose purchase is directed
by a sophisticated person having such knowledge and experience in
financial and business matters that she is capable of evaluating
the risks
and merits of investing in the
Company;
|
(4)
|
a
director or executive officer of the
Company;
|
(5)
|
an
organization described in Section 501(c)(3) of the Internal Revenue
Code,
corporation, Massachusetts or similar business trust, or partnership,
not
formed for the specific purpose of acquiring the securities offered,
with
total assets in excess of
$5,000,000;
|
(6)
|
a
bank as defined in the Securities Act of 1933 (the “Act”), or a savings
and loan association or other institution as defined in the Act whether
acting in its individual or fiduciary capacity; a broker or dealer
registered under the Securities Exchange Act of 1934; an insurance
company
as defined in the Act; an investment company registered under the
Investment Company act of 1940 or a business development company
as
defined in the Act; a Small Business Investment Company licensed
under the
Small Business Investment Act of 1958; an employee benefit plan within
the
meaning of Title I of the Employee Retirement Income Security Act
of 1974,
if the investment decision is made by a plan fiduciary, which is
either a
bank, savings and loan association, an insurance company, or registered
investment adviser, or if the employee benefit plan has total assets
in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors;
|
(7)
|
a
“private business development company” as defined in the Investment
Advisers Act of 1940; or
|
(8)
|
an
entity in which all of the equity owners are accredited investors.
|
SUBSCRIPTION
|
|
90,909
|
Number
of Shares of Common Stock
|
$500,000.00
|
Total
payment enclosed
|
______________________________
|
Atlas
Capital, SA
|
(Address)
|
(Name
of Subscriber)
|
Rue
de Rhone 116
|
/s/
Avy
Lugassy
/s/ Moise Dwek
|
CH
- 1204
|
(Signature)
|
Geneva,
Switzerland
|
|
(Address)
|
|
_______________________
|
|
Social
Security Number
|
SMART
ONLINE, INC.
|
|
By:
/s/ Michael Nouri
|
|
Michael
Nouri, President
|
SUBSCRIPTION
|
|
50,000
|
Number
of Shares of Common Stock
|
$275,000.00
|
Total
payment enclosed
|
______________________________
|
Atlas
Capital, SA
|
(Address)
|
(Name
of Subscriber)
|
Rue
de Rhone 116
|
/s/
Avy
Lugassy
/s/ Moise Dwek
|
CH
- 1204
|
(Signature)
|
Geneva,
Switzerland
|
|
(Address)
|
|
_______________________
|
|
Social
Security Number
|
SMART
ONLINE, INC.
|
|
By:
/s/ Michael Nouri
|
|
Michael
Nouri, President
|
SUBSCRIPTION
|
|
63,500
|
Number
of Shares of Common Stock
|
$34,925.00
|
Total
payment enclosed
|
______________________________
|
Atlas
Capital, SA
|
(Address)
|
(Name
of Subscriber)
|
Rue
de Rhone 116
|
/s/
Avy
Lugassy
/s/ Moise Dwek
|
CH
- 1204
|
(Signature)
|
Geneva,
Switzerland
|
|
(Address)
|
|
_______________________
|
|
Social
Security Number
|
SMART
ONLINE, INC.
|
|
By:
/s/ Micharl Nouri
|
|
Michael
Nouri, President
|
SMART
ONLINE, INC.
|
|
By:
______________________
|
By:
_____________________
|
Michael
Nouri, President
|
Name:___________________
|
Title:____________________
|
|
Address:
________________
|
|
________________
|
|
________________
|
|
________________
|
(1)
|
a
natural person whose individual net worth, or joint net worth, with
that
person’s spouse, at the time of purchase exceeds
$1,000,000;
|
(2)
|
a
natural person who had an individual income in excess of $200,000
in each
of the two most recent years or joint income with that person’s spouse in
excess of $300,000 in each of those years and has a reasonable expectation
of reaching the same income level in the current year (the year in
which
the purchase is made);
|
(3)
|
any
trust, with total assets in excess of $5,000,000, not formed for
the
specific purpose of investing in the Company, whose purchase is directed
by a sophisticated person having such knowledge and experience in
financial and business matters that she is capable of evaluating
the risks
and merits of investing in the
Company;
|
(4)
|
a
director or executive officer of the
Company;
|
(5)
|
an
organization described in Section 501(c)(3) of the Internal Revenue
Code,
corporation, Massachusetts or similar business trust, or partnership,
not
formed for the specific purpose of acquiring the securities offered,
with
total assets in excess of
$5,000,000;
|
(6)
|
a
bank as defined in the Securities Act of 1933 (the “Act”), or a savings
and loan association or other institution as defined in the Act whether
acting in its individual or fiduciary capacity; a broker or dealer
registered under the Securities Exchange Act of 1934; an insurance
company
as defined in the Act; an investment company registered under the
Investment Company act of 1940 or a business development company
as
defined in the Act; a Small Business Investment Company licensed
under the
Small Business Investment Act of 1958; an employee benefit plan within
the
meaning of Title I of the Employee Retirement Income Security Act
of 1974,
if the investment decision is made by a plan fiduciary, which is
either a
bank, savings and loan association, an insurance company, or registered
investment adviser, or if the employee benefit plan has total assets
in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors;
|
(7)
|
a
“private business development company” as defined in the Investment
Advisers Act of 1940; or
|
(8)
|
an
entity in which all of the equity owners are accredited investors.
|
SUBSCRIPTION
|
|
181,820
|
Number
of Shares of Common Stock
|
$1,000,010
|
Total
payment enclosed
|
|
|
______________________________
|
Atlas Capital SA as
Designee of Credit Suisse Zuruich
|
(Address)
|
(Name
of Subscriber)
|
SWEC
18
|
/s/
Moise Dwek /s/ Avy
Lugassy
|
Paradeplatz
8
|
(Signature)
|
P.O.
Box 500
|
|
CH
- 8070 Zurich
|
Credit Suisse Zurich |
(Address)
|
|
_______________________
|
|
Social
Security Number
|
SMART
ONLINE, INC.
|
|
By:
/s/ Michael Nouri
|
|
Michael
Nouri, President
|
|
SMART
ONLINE, INC.
|
Atlas
Capital SA as
Designee
of Credit Suisse Zurich
|
By:
/s/ Michael Nouri
|
By:
/s/ Moise Dwek /s/ Avy Lugassy
|
Michael
Nouri, President
|
Name:
Alexandra Zunner
|
Title:
Designee
|
|
Address:
Credit Suisse
|
|
SWEC 18
|
|
Paradeplatz 8
|
|
P.O. Box 500
CH - 8070 Zurich
|
(1)
|
a
natural person whose individual net worth, or joint net worth,
with that
person’s spouse, at the time of purchase exceeds
$1,000,000;
|
(2)
|
a
natural person who had an individual income in excess of $200,000
in each
of the two most recent years or joint income with that person’s spouse in
excess of $300,000 in each of those years and has a reasonable
expectation
of reaching the same income level in the current year (the year
in which
the purchase is made);
|
(3)
|
any
trust, with total assets in excess of $5,000,000, not formed for
the
specific purpose of investing in the Company, whose purchase is
directed
by a sophisticated person having such knowledge and experience
in
financial and business matters that she is capable of evaluating
the risks
and merits of investing in the
Company;
|
(4)
|
a
director or executive officer of the
Company;
|
(5)
|
an
organization described in Section 501(c)(3) of the Internal Revenue
Code,
corporation, Massachusetts or similar business trust, or partnership,
not
formed for the specific purpose of acquiring the securities offered,
with
total assets in excess of
$5,000,000;
|
(6)
|
a
bank as defined in the Securities Act of 1933 (the “Act”), or a savings
and loan association or other institution as defined in the Act
whether
acting in its individual or fiduciary capacity; a broker or dealer
registered under the Securities Exchange Act of 1934; an insurance
company
as defined in the Act; an investment company registered under the
Investment Company act of 1940 or a business development company
as
defined in the Act; a Small Business Investment Company licensed
under the
Small Business Investment Act of 1958; an employee benefit plan
within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974,
if the investment decision is made by a plan fiduciary, which is
either a
bank, savings and loan association, an insurance company, or registered
investment adviser, or if the employee benefit plan has total assets
in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors;
|
(7)
|
a
“private business development company” as defined in the Investment
Advisers Act of 1940; or
|
(8)
|
an
entity in which all of the equity owners are accredited investors.
|
SUBSCRIPTION
|
|
500,000
|
Number
of Shares of Common Stock
|
|
|
$2,500,000
|
Total
payment enclosed
|
ADDRESS:
|
|
Walker House | |
Mary Street |
THE
BLUELINE FUND
|
P.O. Box 908 GT |
(Name
of Subscriber)
|
George Town, Grand Cayman |
/s/
Philippe Pouponnot
|
Cayman Islands |
(Signature)
|
_______________________
|
|
Incorporation
/s/ Philippe Pouponnot
|
SMART
ONLINE, INC.
|
|
By:
/s/ Michael Nouri
|
|
Michael
Nouri, President
|
Debt
securities.
"Debt securities" of an issuer is defined to mean any security
other than
an equity security as defined in
Rule
405
,
as well as the following:
|
Non-participatory
preferred stock, which is defined as non-convertible capital stock,
the
holders of which are entitled to a preference in payment of dividends
and
in distribution of assets on liquidation, dissolution, or winding
up of
the issuer, but are not entitled to participate in residual earnings
or
assets of the issuer; and
|
Asset-backed
securities, which are securities of a type that
either:
|
Represent
an ownership interest in a pool of discrete assets, or certificates
of
interest or participation in such assets (including any rights
designed to
assure servicing, or the receipt or timeliness of receipt by holders of
such assets, or certificates of interest or participation in such
assets,
of amounts payable thereunder), provided that the assets are not
generated
or originated between the issuer of the security and its affiliates;
or
|
Are
secured by one or more assets or certificates of interest or participation
in such assets, and the securities, by their terms, provide for
payments
of principal and interest (if any) in relation to payments or reasonable
projections of payments on assets meeting the requirements of paragraph
(a)(2)(i) of this section, or certificates of interest or participations
in assets meeting such
requirements.
|
For
purposes of paragraph (a)(2) of this section, the term "assets"
means
securities, installment sales, accounts receivable, notes, leases
or other
contracts, or other assets that by their terms convert into cash
over a
finite period of time.
|
Designated
offshore securities market.
"Designated offshore securities market"
means:
|
The
Eurobond market, as regulated by the International Securities Market
Association; the Alberta Stock Exchange; the Amsterdam Stock Exchange;
the
Australian Stock Exchange Limited; the Bermuda Stock Exchange;
the Bourse
de Bruxelles; the Copenhagen Stock Exchange; the European Association
of
Securities Dealers Automated Quotation; the Frankfurt Stock Exchange;
the
Helsinki Stock Exchange; The Stock Exchange of Hong Kong Limited;
the
Irish
|
Any
foreign securities exchange or non-exchange market designated by
the
Commission. Attributes to be considered in determining whether
to
designate an offshore securities market, among others,
include:
|
Organization
under foreign law;
|
Association
with a generally recognized community of brokers, dealers, banks,
or other
professional intermediaries with an established operating
history;
|
Oversight
by a governmental or self-regulatory
body;
|
Oversight
standards set by an existing body of
law;
|
Reporting
of securities transactions on a regular basis to a governmental
or
self-regulatory body;
|
A
system for exchange of price quotations through common communications
media; and
|
An
organized clearance and settlement
system.
|
Directed
selling efforts.
|
"Directed
selling efforts" means any activity undertaken for the purpose
of, or that
could reasonably be expected to have the effect of, conditioning
the
market in the United States for any of the securities being offered
in
reliance on this
Regulation
S
(Rule 901 through Rule 905, and Preliminary Notes). Such activity
includes
placing an advertisement in a publication "with a general circulation
in
the United States" that refers to the offering of securities being
made in
reliance upon this Regulation S.
|
Publication
"with a general circulation in the United
States":
|
Is
defined as any publication that is printed primarily for distribution
in
the United States, or has had, during the preceding twelve months,
an
average circulation in the United States of 15,000 or more copies
per
issue; and
|
Will
encompass only the U.S. edition of any publication printing a separate
U.S. edition if the publication, without considering its U.S. edition,
would not constitute a publication with a general circulation in
the
United States.
|
The
following are not "directed selling
efforts":
|
Placing
an advertisement required to be published under U.S. or foreign
law, or
under rules or regulations of a U.S. or foreign regulatory or self-
regulatory authority, provided the advertisement contains no more
information than legally required and includes a statement to the
effect
that the securities have not been registered under the Act and
may not be
offered or sold in the United States (or to a U.S. person, if the
advertisement relates to an offering under Category 2 or 3 (paragraph
(b)(2) or (b)(3)) in
Rule
903
)
absent registration or an applicable exemption from the registration
requirements;
|
Contact
with persons excluded from the definition of "U.S. person" pursuant
to
paragraph
(k)(2)(vi)
of
this section or persons holding accounts excluded from the definition
of
"U.S. person" pursuant to
paragraph
(k)(2)(i)
of
this section, solely in their capacities as holders of such
accounts;
|
A
tombstone advertisement in any publication with a general circulation
in
the United States, provided:
|
The
publication has less than 20% of its circulation, calculated by
aggregating the circulation of its U.S. and comparable non-U.S.
editions,
in the United States;
|
Such
advertisement contains a legend to the effect that the securities
have not
been registered under the Act and may not be offered or sold in
the United
States (or to a U.S. person, if the advertisement relates to an
offering
under Category 2 or 3 (paragraph (b)(2) or (b)(3)) in Rule 903)
absent
registration or an applicable exemption from the registration
requirements; and
|
Such
advertisement contains no more information
than:
|
The
issuer's name;
|
The
amount and title of the securities being
sold;
|
A
brief indication of the issuer's general type of
business;
|
The
price of the securities;
|
The
yield of the securities, if debt securities with a fixed (non-
contingent)
interest provision;
|
The
name and address of the person placing the advertisement, and whether
such
person is participating in the
distribution;
|
The
names of the managing underwriters;
|
The
dates, if any, upon which the sales commenced and
concluded;
|
Whether
the securities are offered or were offered by rights issued to
security
holders and, if so, the class of securities that are entitled or
were
entitled to subscribe, the subscription ratio, the record date,
the dates
(if any) upon which the rights were issued and expired, and the
subscription price; and
|
Any
legend required by law or any foreign or U.S. regulatory or self-
regulatory authority;
|
Bona
fide visits to real estate, plants or other facilities located
in the
United States and tours thereof conducted for a prospective investor
by an
issuer, a distributor, any of their respective affiliates or a
person
acting on behalf of any of the
foregoing;
|
Distribution
in the United States of a foreign broker-dealer's quotations by
a
third-party system that distributes such quotations primarily in
foreign
countries if:
|
Securities
transactions cannot be executed between foreign broker-dealers
and persons
in the United States through the system;
and
|
The
issuer, distributors, their respective affiliates, persons acting
on
behalf of any of the foregoing, foreign broker-dealers and other
participants in the system do not initiate contacts with U.S. persons
or
persons within the United States, beyond those contacts exempted
under
Rule
15a-6
under the Exchange Act; and
|
Publication
by an issuer of a notice in accordance with
Rule
135
or
Rule
135c
.
|
Providing
any journalist with access to press conferences held outside of
the United
States, to meetings with the issuer or selling security holder
representatives conducted outside the United States, or to written
press-related materials released outside the United States, at
or in which
a present or proposed offering of securities is discussed, if the
requirements of
Rule
135e
are satisfied.
|
Distributor.
"Distributor" means any underwriter, dealer, or other person who
participates, pursuant to a contractual arrangement, in the distribution
of the securities offered or sold in reliance on this
Regulation
S
(Rule 901 through Rule 905, and Preliminary
Notes).
|
Domestic
issuer/Foreign issuer.
"Domestic issuer" means any issuer other than a "foreign government"
or
"foreign private issuer" (both as defined in
Rule
405
).
"Foreign issuer" means any issuer other than a "domestic
issuer."
|
Distribution
compliance period.
"Distribution compliance period" means a period that begins when
the
securities were first offered to persons other than distributors
in
reliance upon this Regulation S (Rule 901 through Rule 905, and
Preliminary Notes) or the date of closing of the offering, whichever
is
later, and continues until the end of the period of time specified
in the
relevant provision of
Rule
903
,
except that:
|
All
offers and sales by a distributor of an unsold allotment or subscription
shall be deemed to be made during the distribution compliance
period;
|
In
a continuous offering, the distribution compliance period shall
commence
upon completion of the distribution, as determined and certified
by the
managing underwriter or person performing similar
functions;
|
In
a continuous offering of non-convertible debt securities offered
and sold
in identifiable tranches, the distribution compliance period for
securities in a tranche shall commence upon completion of the distribution
of such tranche, as determined and certified by the managing underwriter
or person performing similar functions;
and
|
That
in a continuous offering of securities to be acquired upon the
exercise of
warrants, the distribution compliance period shall commence upon
completion of the distribution of the warrants, as determined and
certified by the managing underwriter or person performing similar
functions, if requirements of Rule 903(b)(5) are
satisfied.
|
Offering
restrictions.
"Offering restrictions" means:
|
Each
distributor agrees in writing:
|
That
all offers and sales of the securities prior to the expiration
of the
distribution compliance period specified in Category 2 or 3 (paragraph
(b)(2) or (b)(3)) in Rule 903, as applicable, shall be made only
in
accordance with the provisions of
Rule
903
or
Rule
904
;
pursuant to registration of the securities under the Act; or pursuant
to
an available exemption from the registration requirements of the
Act;
and
|
For
offers and sales of equity securities of domestic issuers, not
to engage
in hedging transactions with regard to such securities prior to
the
expiration of the distribution compliance period specified in Category
2
or 3 (paragraph (b)(2) or (b)(3)) in Rule 903, as applicable, unless
in
compliance with the Act; and
|
All
offering materials and documents (other than press releases) used
in
connection with offers and sales of the securities prior to the
expiration
of the distribution compliance period specified in Category 2 or
3
(paragraph (b)(2) or (b)(3)) in Rule 903, as applicable, shall
include
statements to the effect that the securities have not been registered
under the Act and may not be offered or sold in the United States
or to
U.S. persons (other than distributors) unless the securities are
registered under the Act, or an exemption from the registration
requirements of the Act is available. For offers and sales of equity
securities of domestic issuers, such offering materials and documents
also
must state that hedging transactions involving those securities
may not be
conducted unless in compliance with the Act. Such statements shall
appear:
|
On
the cover or inside cover page of any prospectus or offering circular
used
in connection with the offer or sale of the
securities;
|
In
the underwriting section of any prospectus or offering circular
used in
connection with the offer or sale of the securities;
and
|
In
any advertisement made or issued by the issuer, any distributor,
any of
their respective affiliates, or any person acting on behalf of
any of the
foregoing. Such statements may appear in summary form on prospectus
cover
pages and in advertisements.
|
Offshore
transaction.
|
An
offer or sale of securities is made in an "offshore transaction"
if:
|
The
offer is not made to a person in the United States;
and
|
Either:
|
At
the time the buy order is originated, the buyer is outside the
United
States, or the seller and any person acting on its behalf reasonably
believe that the buyer is outside the United States;
or
|
For
purposes of:
|
Section
Rule
903
,
the transaction is executed in, on or through a physical trading
floor of
an established foreign securities exchange that is located outside
the
United States; or
|
Section
Rule
904
,
the transaction is executed in, on or through the facilities of
a
designated offshore securities market described in
paragraph
(b)
of
this section, and neither the seller nor any person acting on its
behalf
knows that the transaction has been pre-arranged with a buyer in
the
United States.
|
Notwithstanding
paragraph (h)(1) of this section, offers and sales of securities
specifically targeted at identifiable groups of U.S. citizens abroad,
such
as members of the U.S. armed forces serving overseas, shall not
be deemed
to be made in "offshore
transactions."
|
Notwithstanding
paragraph (h)(1) of this section, offers and sales of securities
to
persons excluded from the definition of "U.S. person" pursuant
to
paragraph
(k)(2)(vi)
of
this section or persons holding accounts excluded from the definition
of
"U.S. person" pursuant to
paragraph
(k)(2)(i)
of
this section, solely in their capacities as holders of such accounts,
shall be deemed to be made in "offshore
transactions."
|
Reporting
issuer.
"Reporting issuer" means an issuer other than an investment company
registered or required to register under the 1940 Act
that:
|
Has
a class of securities registered pursuant to Section
12(b)
or
12(g) of the Exchange Act or is required to file reports pursuant
to
Section 15(d) of the Exchange Act;
and
|
Has
filed all the material required to be filed pursuant to Section
13(a)
or
15(d)
of
the Exchange Act for a period of at least twelve months immediately
preceding the offer or sale of securities made in reliance upon
this
Regulation
S
(Rule 901 through Rule 905, and Preliminary Notes) (or for such
shorter
period that the issuer was required to file such
material).
|
Substantial
U.S. market interest.
|
"Substantial
U.S. market interest" with respect to a class of an issuer's equity
securities means:
|
The
securities exchanges and inter-dealer quotation systems in the
United
States in the aggregate constituted the single largest market for
such
class of securities in the shorter of the issuer's prior fiscal
year or
the period since the issuer's incorporation;
or
|
20
percent or more of all trading in such class of securities took
place in,
on or through the facilities of securities exchanges and inter-dealer
quotation systems in the United States and less than 55 percent
of such
trading took place in, on or through the facilities of securities
markets
of a single foreign country in the shorter of the issuer's prior
fiscal
year or the period since the issuer's
incorporation.
|
"Substantial
U.S. market interest" with respect to an issuer's debt securities
means:
|
Its
debt securities, in the aggregate, are held of record (as that
term is
defined in
Rule
12g5-1
under the Exchange Act and used for purposes of paragraph (j)(2)
of this
section) by 300 or more U.S.
persons;
|
$1
billion or more of: The principal amount outstanding of its debt
securities, the greater of liquidation preference or par value
of its
securities described in Rule 902(a)(1), and the principal amount
or
principal balance of its securities described in Rule 902(a)(2),
in the
aggregate, is held of record by U.S. persons;
and
|
20
percent or more of: The principal amount outstanding of its debt
securities, the greater of liquidation preference or par value
of its
securities described in Rule 902(a)(1), and the principal amount
or
principal balance of its securities described in Rule 902(a)(1),
in the
aggregate, is held of record by U.S.
persons.
|
Notwithstanding
paragraph (j)(2) of this section, substantial U.S. market interest
with
respect to an issuer's debt securities is calculated without reference
to
securities that qualify for the exemption provided by
Section
3(a)(3)
of
the Act.
|
U.S.
person.
|
"U.S.
person" means:
|
Any
natural person resident in the United
States;
|
Any
partnership or corporation organized or incorporated under the
laws of the
United States;
|
Any
estate of which any executor or administrator is a U.S.
person;
|
Any
trust of which any trustee is a U.S.
person;
|
Any
agency or branch of a foreign entity located in the United
States;
|
Any
non-discretionary account or similar account (other than an estate
or
trust) held by a dealer or other fiduciary for the benefit or account
of a
U.S. person;
|
Any
discretionary account or similar account (other than an estate
or trust)
held by a dealer or other fiduciary organized, incorporated, or
(if an
individual) resident in the United States;
and
|
Any
partnership or corporation if:
|
Organized
or incorporated under the laws of any foreign jurisdiction;
and
|
Formed
by a U.S. person principally for the purpose of investing in securities
not registered under the Act, unless it is organized or incorporated,
and
owned, by accredited investors (as defined in
Rule
501(a)
)
who are not natural persons, estates or
trusts.
|
The
following are not "U.S. persons":
|
Any
discretionary account or similar account (other than an estate
or trust)
held for the benefit or account of a non-U.S. person by a dealer
or other
professional fiduciary organized, incorporated, or (if an individual)
resident in the United States;
|
Any
estate of which any professional fiduciary acting as executor or
administrator is a U.S. person if:
|
An
executor or administrator of the estate who is not a U.S. person
has sole
or shared investment discretion with respect to the assets of the
estate;
and
|
The
estate is governed by foreign law;
|
Any
trust of which any professional fiduciary acting as trustee is
a U.S.
person, if a trustee who is not a U.S. person has sole or shared
investment discretion with respect to the trust assets, and no
beneficiary
of the trust (and no settlor if the trust is revocable) is a U.S.
person;
|
An
employee benefit plan established and administered in accordance
with the
law of a country other than the United States and customary practices
and
documentation of such country;
|
Any
agency or branch of a U.S. person located outside the United States
if:
|
The
agency or branch operates for valid business reasons;
and
|
The
agency or branch is engaged in the business of insurance or banking
and is
subject to substantive insurance or banking regulation, respectively,
in
the jurisdiction where located; and
|
The
International Monetary Fund, the International Bank for Reconstruction
and
Development, the Inter-American Development Bank, the Asian Development
Bank, the African Development Bank, the United Nations, and their
agencies, affiliates and pension plans, and any other similar
international organizations, their agencies, affiliates and pension
plans.
|
United
States.
"United States" means the United States of America, its territories
and
possessions, any State of the United States, and the District of
Columbia.
|
SMART
ONLINE, INC.
|
THE
BLUELINE FUND
|
By:
/s/ Michael Nouri
2/25/05
|
By:
/s/ Philippe Pouponnot
|
Michael
Nouri, President
|
Name:
Philippe Poupnott
|
Title:
Delegate
|
|
Walker
House, Mary Street
|
|
P.
0. Box 908GT
|
|
George
Town Grand Cayman
|
|
Cayman
Islands
|
SMART
ONLINE, INC.
|
|
By:
___________________________
|
|
Michael
Nouri, President
|
|
(1)
|
a
natural person whose individual net worth, or joint net worth,
with that
person’s spouse, at the time of purchase exceeds
$1,000,000;
|
(2)
|
a
natural person who had an individual income in excess of $200,000
in each
of the two most recent years or joint income with that person’s spouse in
excess of $300,000 in each of those years and has a reasonable
expectation
of reaching the same income level in the current year (the year
in which
the purchase is made);
|
(3)
|
any
trust, with total assets in excess of $5,000,000, not formed for
the
specific purpose of investing in the Company, whose purchase is
directed
by a sophisticated person having such knowledge and experience
in
financial and business matters that she is capable of evaluating
the risks
and merits of investing in the
Company;
|
(4)
|
a
director or executive officer of the
Company;
|
(5)
|
an
organization described in Section 501(c)(3) of the Internal Revenue
Code,
corporation, Massachusetts or similar business trust, or partnership,
not
formed for the specific purpose of acquiring the securities offered,
with
total assets in excess of
$5,000,000;
|
(6)
|
a
bank as defined in the Securities Act of 1933 (the “Act”), or a savings
and loan association or other institution as defined in the Act
whether
acting in its individual or fiduciary capacity; a broker or dealer
registered under the Securities Exchange Act of 1934; an insurance
company
as defined in the Act; an investment company registered under the
Investment Company act of 1940 or a business development company
as
defined in the Act; a Small Business Investment Company licensed
under the
Small Business Investment Act of 1958; an employee benefit plan
within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974,
if the investment decision is made by a plan fiduciary, which is
either a
bank, savings and loan association, an insurance company, or registered
investment adviser, or if the employee benefit plan has total assets
in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors;
|
(7)
|
a
“private business development company” as defined in the Investment
Advisers Act of 1940; or
|
(8)
|
an
entity in which all of the equity owners are accredited investors.
|
Very
truly yours,
|
|
/s/
Dennis Michael Nouri
|
|
Dennis
Michael Nouri
|
|
President
and Chief Executive Officer
Smart
Online, Inc.
|
By:
/s/ David E.Y. Sarna
|
|
Name:
David E.Y. Sarna
|
|
Dated:
April 14, 2006
|
Very
truly yours,
|
|
/s/
Dennis Michael Nouri
|
|
Dennis
Michael Nouri
|
|
President
and Chief Executive Officer
Smart
Online, Inc.
|
By:
/s/ Joan A.Keston
|
|
Name:
Joan A. Keston
Title:
General
Counsel & Secretary
|
|
Dated:
4/19/06
|
Very
truly yours,
|
|
/s/
Dennis Michael Nouri
|
|
Dennis
Michael Nouri
|
|
President
and Chief Executive Officer
Smart
Online, Inc.
|
Agree
to and Accepted:
|
Witness:
|
By:
/s/Tom
Furr
Tom
Furr
|
By:
/s/ James
Gayton
James Gayton
|
Title:
Chief Operating Officer Director
|
Date:
January 26,2006
|
Date:
January 26, 2006
|
Very
truly yours,
|
|
/s/
Dennis Michael Nouri
|
|
Dennis
Michael Nouri
|
|
President
and Chief Executive Officer
Smart
Online, Inc.
|
Agree
to and Accepted:
|
Witness:
|
By:
/s/ Henry Nouri
Henry
Nouri
|
By:
/s/ James Gayton
James Gayton
|
Title:
Executive Vice President
|
Date:
January 26,2006
|
Date:
January 26, 2006
|
Very
truly yours,
|
|
/s/
Dennis Michael Nouri
|
|
Dennis
Michael Nouri
|
|
President
and Chief Executive Officer
Smart
Online, Inc.
|
By:
/s/ Scott Whitaker
|
|
Name:
Scott Whitaker
Title:
Controller
|
|
Dated:
April 19, 2006
|
Very
truly yours,
|
|
/s/
Thomas Furr
|
|
Thomas
Furr
|
|
Chief
Operating Officer
Smart
Online, Inc.
|
Agree
to and Accepted:
|
Witness:
|
By:
/s/ Michael Nouri
Michael Nouri
|
By:
/s/ James Gayton
James Gayton
|
Title:
President and Chief Executive Officer
Director
Chairman of the Board
|
Date:
January 26,2006
|
Date:
January 26, 2006
|
Name
of Subsidiary
|
State
of Incorporation
|
Doing
Business As
|
Smart
CRM, Inc.
|
Delaware
|
Computility
|
Smart
Commerce, Inc.
|
Delaware
|
iMart
|
Date:
July 11, 2006
|
By:
/s/ Michael Nouri
|
|
Michael Nouri
|
|
President and Chief Executive
Officer
|
Date:
July 11, 2006
|
|
By:
|
/s/
Nicholas Siniglia
|
Nicholas
Sinigaglia
|
|
Chief
Financial Officer
|