Exhibit 4.30
INVESTOR SUBSCRIPTION AGREEMENT
Date: ____________________
Affinity International Travel Systems, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: Affinity International Travel Systems, Inc.
Ladies and Gentlemen:
The undersigned hereby subscribes to the immediate acquisition of _____
units, at $1.00 per unit, each unit consisting of one share of common stock, par
value $.001 per share (the "Common Stock"), of Affinity International Travel
Systems, Inc. (the "Company") and a warrant to purchase one share of Common
Stock of the Company at a purchase price of $.75 per share, for an aggregate
purchase price of $__________. The Common Stock, the warrants and the underlying
common shares of the warrants are collectively referred to as the "Securities".
In connection with the purchase of the Securities, the undersigned
acknowledges, warrants and represents to the Company as follows:
1. The undersigned is acquiring the Securities for investment for its own
account and without the intention of participating, directly or indirectly, in a
distribution of the Securities and not with a view to resale or any distribution
of the Securities, or any portion thereof.
2. The undersigned (either alone or with its purchaser representative) has
such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of this investment and has consulted
with its own professional representatives as he has considered appropriate to
assist in evaluating the merits and risks of this investment. The undersigned
has had access to and an opportunity to question the officers of the Company, or
persons acting on their behalf, with respect to material information about the
Company and, in connection with its evaluation of this investment, has, to the
best of its knowledge, received all information and data with respect to the
Company that the undersigned has requested. The undersigned is acquiring the
Securities solely upon his independent examination and judgment as to the
prospects of the Company.
3. The Securities were not offered to the undersigned by means of publicly
disseminated advertisements or sales literature.
4. The undersigned acknowledges that an investment in the Securities is
speculative and the undersigned may have to continue to bear the economic risk
of the investment in the Securities for an indefinite period. The undersigned
acknowledges that the Securities are being sold to the undersigned without
registration under any state or federal law requiring the registration of
securities for sale. The transferability of the Securities is restricted by
applicable federal and state securities laws and may be restricted under the
laws of other jurisdictions.
-1-
5. The undersigned acknowledges that the Securities are being sold in
connection with a private placement of securities exempt from registration under
the Securities Act of 1933, as amended (the "Private Placement"), and that such
exemption is dependent, in part, on the accuracy of the undersigned's
representations and warranties contained in this Agreement.
6. The undersigned is an "accredited investor" as such term is defined in
Appendix A and is capable of evaluating the merits and risks of an investment in
the Company.
7. The undersigned understands and agrees that attendant to an investment
in the Securities are certain risk factors which the undersigned should and has
considered and reviewed in evaluating an investment in the Company, including,
but not limited to, those risk factors described in Appendix B attached hereto.
8. The undersigned is able financially to bear the risk of losing his
entire investment, has adequate means of providing for his current needs and
possible personal contingencies, and has no need for liquidity of this
investment.
9. In consideration of the acceptance of this subscription, the
undersigned agrees that the Securities will not be offered for sale, sold or
transferred by the undersigned other than pursuant to an effective registration
under the federal and state securities law or other jurisdiction applicable to
the transaction, an exemption available under such laws, or a transaction that
is otherwise in compliance with such laws.
10. The undersigned understands that no U.S. federal or state agency has
passed upon the offering of the Securities or has made any finding or
determination as to the fairness of any investment in the Shares.
In connection with the purchase and sale of the Securities, the Company
agrees to include the Securities for registration in any registration statement,
other than in an Excluded Registration (as defined below), that is filed by the
Company under the Securities Act. An "Excluded Registration" includes a
registration statement filed to register those shares issued solely in
connection with any acquisition of any entity or business, shares issuable
solely upon the exercise of stock options, or shares issuable solely pursuant to
employee benefit plans, including registration statements on Form ▇-▇, ▇-▇ or
any successor form. Securities issued in connection with this Agreement shall
cease to be registrable securities upon (1) any sale pursuant to a registration
statement under the Securities Act, or Section 4(1) of the Securities Act, (2)
any sale, transfer or assignment in any manner to any person who is not entitled
to the rights provided by this Agreement, or (3) such time as such Shares become
eligible for resale under Rule 144 promulgated under the Securities Act.
The undersigned acknowledges that the Company's capitalization is as
follows: As of January 27, 2000, the authorized capital stock of the Company
consists of 100,000,000 shares of Common Stock, par value $.001 per share, and
100,000,000 shares of Preferred Stock, par value $.001 per share, of which
13,880,828 shares of Common Stock are presently issued and outstanding and no
shares of Preferred Stock are presently issued and outstanding. In addition, as
of January 27, 2000, the Company is committed to issue or has issued warrants to
purchase 8,750,000 shares of Common Stock at a purchase price of $.25 per share,
and there are outstanding options to purchase 2,015,000 shares of Common Stock
at a weighted average exercise price of $.50 per share. For purposes of this
subscription agreement and the risk factors attached, the total number of
outstanding warrants (i.e., warrants to purchase 8,750,000 shares) includes our
commitment to issue warrants to purchase 4,250,000 shares of our common stock to
certain investors. If the transactions involving the issuance of warrants to
purchase 4,250,000 shares are not completed, the number of shares outstanding or
the number of shares subject to outstanding warrants
-2-
could be significantly different, which could have a substantial dilutive effect
on a stockholder's interest in Affinity.
The undersigned further acknowledges that he will suffer immediate and
substantial dilution upon the issuance of additional Securities in connection
with the Company's Private Placement in which the undersigned's investment is a
part. The issuance of additional shares of Common Stock that are currently
subject to outstanding warrants and options to purchase shares of the Company's
Common Stock will further dilute the undersigned's ownership interest in the
Company.
The undersigned agrees to indemnify and hold harmless the Company and its
officers, directors, stockholders, employees, agents and attorneys from and
against any and all costs, liabilities and expenses (including attorneys' fees)
arising out of or related in any way to any breach of any representation or
warranty contained herein.
ACCEPTANCE OF SUBSCRIPTION: SUBSCRIBER:
Affinity International Travel Systems, Inc.
By:
------------------------------------ ---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Address:
-------------------------
---------------------------------
Dated:
---------------------------------
-3-
APPENDIX A
An "Accredited Investor" within the meaning of Regulation D under the Securities
Act of 1933 includes the following:
Organizations
(1) A bank as defined in section 3(a)(2) of the Act, or any savings and
loan association or other institution as defined in section 3(a)(5)(A) of the
Act, whether acting in its individual or fiduciary capacity; a broker or dealer
registered pursuant to section 15 of the Securities Exchange Act of 1934;
insurance company as defined in section 2(13) of the Act; an investment company
registered under the Investment Company Act of 1940 or a business development
company as defined in section 2(a)(48) of that act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under section 301(c)
or (d) of 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, as defined in
section 3(21) of such act, which is either a bank, savings and loan association,
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.
(2) A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940.
(3) A trust (i) with total assets in excess of $5,000,000, (ii) not formed
for the specific purpose of acquiring the Securities, and (iii) whose purchase
is directed by a person who, either alone or with his purchaser representative,
has such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of the proposed investment.
(4) A corporation, business trust, partnership, or an organization
described in section 501(c)(3) of the Internal Revenue Code, which was not
formed for the specific purpose of acquiring the Securities, and which has total
assets in excess of $5,000,000.
Individuals
(5) Individuals with income from all sources for each of the last two full
calendar years whose reasonably expected income for this calendar year exceeds
either of:
(i) $200,000 individual income; or
(ii) $300,000 joint income with spouse.
NOTE: Your "income" for a particular year may be calculated by adding to your
adjusted gross income as calculated for Federal income tax purposes any
deduction for long term capital gains, any deduction for depletion allowance,
any exclusion for tax exempt interest and any losses of a partnership allocated
to you as a partner.
(6) Individuals with net worth as of the date hereof (individually or
jointly with your spouse), including the value of home, furnishings, and
automobiles, in excess of $1,000,000.
(7) Directors, executive officers or general partners of the Issuer.
-4-
APPENDIX B
RISK FACTORS
You should carefully consider the following factors before deciding to
invest in the shares of common stock. The risks and uncertainties described
below are not the only ones we face. Additional risks and uncertainties not
presently known to us, that we currently deem immaterial or that are similar to
those faced by other companies in our industry or business in general, may also
impair our business operations. If any of the following risks actually occurs,
our business, financial condition or results of future operations could be
materially and adversely affected. In such case, the trading price of our common
stock could decline, and you may lose all or part of your investment. These risk
factors also contain forward-looking statements that involve risks and
uncertainties. Our actual results could differ materially from those anticipated
in these forward-looking statements as a result of certain factors, including
the risks faced by us described below
RISKS RELATED TO OUR BUSINESS
Our business is difficult to evaluate because we have only recently launched our
new Internet business model.
Our market may not develop as anticipated, and we may not successfully
execute our Internet based business strategy. We have a limited operating
history upon which you can evaluate our business. We have only recently launched
the ▇▇▇▇▇▇▇.▇▇▇ web site. In 1999, we began transitioning our business model to
online sales of travel related products and services. You must consider the
challenges, risks and difficulties frequently encountered by early stage
companies using new and unproven business models in new and rapidly evolving
markets. Some of these challenges relate to our ability to:
o increase our brand name recognition;
o expand our customer base;
o manage our supplier/distributor relationships; and
o upgrade our web site, transaction-processing systems, fulfillment
infrastructure and inventory management systems.
We cannot be certain that our business strategy will be successful or that
we will successfully address these and other challenges, risks and
uncertainties.
Our limited operating history makes forecasting difficult.
As a result of our limited operating history with our current Internet
business model, it is difficult to accurately forecast future revenues. We may
be unable to adjust our spending in a timely manner to compensate for any
unexpected revenue shortfall. Also, we have limited meaningful historical
financial data upon which to base planned operating expenses. We base our
current and future expense levels on our operating plans and estimates of future
revenue. Revenue and operating results are difficult to forecast because they
generally depend on the volume and timing of the orders we receive. As a result,
we may be unable to adjust our spending in a timely manner to compensate for any
unexpected revenue shortfall, which would result in further substantial losses.
We may also be unable to expand our operations in a timely manner to adequately
meet customer demand to the extent it exceeds our expectations.
-5-
Our historical financial results are not meaningful to an analysis of our
current business.
The financial data included in this document covers periods prior to our
transition to our current Internet business strategy and is not necessarily
meaningful to an analysis of our current business. Since our incorporation, we
have completed several acquisitions and subsequently divested or sold some
wholly owned subsidiaries. One of these entities, Prestige Travel, accounted for
a substantial portion of our revenue in 1998 and 1999.
We have a history of net losses.
On a historical basis, we have had operating losses in each of the three
fiscal years ending June 30, 1997, 1998 and 1999. For these periods, we had net
losses totaling $6,669,694. For the fiscal year ended June 30, 1999, we had a
net loss of $5,183,368.
We expect operating losses and negative cash flow to continue for the
foreseeable future. We anticipate our losses will increase significantly from
current levels because we expect to incur significant additional costs and
expenses related to:
o brand development, advertising, marketing and promotional
activities, including product discounts;
o expansion of our supplier/distributor relationships;
o expansion of our order fulfillment infrastructure;
o continued development of our web site, transaction-processing
systems, fulfillment capabilities and network infrastructure;
o expansion of our product offerings and web site content; and
o employment of additional personnel as our business expands.
Our ability to become profitable depends on our ability to generate and
sustain substantially higher revenue while maintaining reasonable expense
levels. In particular, although we intend to increase significantly our spending
on marketing and promotional activities, these efforts may not be effective in
converting a large number of customers from traditional shopping methods to
online shopping for travel products and services or attracting online customers
to our web site. In addition, we may be obligated to pay commissions, based on a
percentage of revenue, to companies with whom we have online marketing
relationships. These costs will increase as our revenues and orders increase. If
we do achieve profitability, we cannot be certain that we will be able to
sustain or increase profitability on a quarterly or annual basis in the future.
We have been unable to fund our operations with the cash generated from our
business. If we do not generate cash sufficient to fund our operations, we may
need additional financing to continue our growth or our growth may be limited.
We require substantial working capital to fund our business. Since our
inception, we have experienced negative cash flow from operations and expect to
experience significant negative cash flow from operations for the foreseeable
future. We currently anticipate that we need to raise approximately $6.0 million
within the next three months. If we raise additional funds through the issuance
of equity or debt securities, those securities may have rights senior to those
of our stockholders, and our stockholders may experience additional dilution. We
cannot be certain that additional financing will be available to us on favorable
terms when required, or at all.
-6-
The failure or malfunction of our technology or the technology of third parties
upon which our systems rely would have a material adverse effect on our
business.
We are currently dependent upon a number of different information and
telecommunication technologies to facilitate our access to information and
manage a high volume of inbound and outbound calls. Any failure of this
technology would have a material adverse effect on our business, financial
condition and results of operations. In addition, we are dependent upon certain
third party vendors, including central reservation systems, such as Logibro,
formerly The SABRE Group, and Amadeus for access to certain information. Any
failure or malfunction of these systems or restricted access by us would have a
material adverse effect on our business, financial condition and results of
operations.
Our new technology may not be successfully developed, installed or implemented
without disrupting our business.
We are currently replacing many of our existing computer systems and web
sites with systems designed to operate with our new web site, ▇▇▇▇▇▇▇.▇▇▇. There
can be no assurance that these new systems will be successfully developed,
installed according to the expected time frame or within the anticipated budget,
implemented without any disruption to our business or result in the intended
operational benefits and cost efficiencies.
If we do not respond to rapid technological changes, our services could become
obsolete and we could lose customers.
To remain competitive, we must continue to enhance and improve the
functionality and features of our online technology. The Internet and the online
commerce industry are rapidly changing. If competitors introduce new products
and services embodying new technologies, or if new industry standards and
practices emerge, our existing web site and proprietary technology and systems
may become obsolete. Our future success will depend on our ability to do the
following:
o both license and internally develop leading technologies useful in
our business;
o enhance our existing services;
o develop new services and technologies that address the increasingly
sophisticated and varied needs of our prospective customers; and
o respond to technological advances and emerging industry standards
and practices on a cost-effective and timely basis.
Ongoing development of our web site and other proprietary technology
entails significant expense and technical risks. We may use new technologies
ineffectively or we may fail to adapt our web site, transaction-processing
systems and network infrastructure to customer requirements or emerging industry
standards. If we face material delays in introducing new services, products and
enhancements, our customers may forego the use of our services and those of our
competitors.
We may fail to compete effectively in our market.
The travel service industry is extremely competitive and has relatively
low barriers to entry. We primarily compete with:
o other distributors of travel services;
o travel providers;
o travel agents;
-7-
o tour operators; and
o central reservation service providers.
Some of our competitors have greater experience, brand name recognition
and/or financial resources than we do.
There is the risk that our travel providers may decide to compete more
directly with us and restrict the availability and/or preferential pricing of
their capacity. In addition, other distributors may have relationships with
travel provider that provide better availability or more competitive pricing
than that offered by us. Furthermore, some travel agents have a strong presence
in their geographic area that may make it difficult for us to attract customers
in those areas.
Competition within the travel service industry is increasing as some of
our competitors are expanding their size and financial resources through
consolidation. Consolidation among travel suppliers has left the remaining
suppliers in a stronger position relative to providers of travel products and
services such as Affinity.
As a result of competitive pressures, we may suffer reduced revenues and
operating margins, loss of market share and diminished brand awareness. We may
be unable to compete successfully and our failure to compete successfully may
have a material adverse effect on our business, financial condition and results
of operations.
Intellectual property claims against us can be costly and result in the loss of
significant rights.
We regard trademarks, copyrights, service marks, trade secrets, patents
and similar intellectual property as important to our success. We rely on
trademark and copyright law, trade secret protection and confidentiality and/or
license agreements with our employees, customers and others to protect our
proprietary rights.
Other parties may assert infringement or unfair competition claims against
us. If we are forced to defend against any claims of infringement, whether they
are with merit or are determined in our favor, then we may face costly
litigation, diversion of technical and management personnel, and product
shipment delays. If there is a successful claim of infringement against us and
we are unable to develop non-infringing technology or license the infringed or
similar technology on a timely basis, or if we are required to cease using one
or more of our business or product names due to a successful trademark
infringement claim against us, it could adversely affect our business.
In addition, effective trademark, service ▇▇▇▇, copyright, trade secret
and patent protection may not be available in every country in which we sell our
products and services online. Therefore, the steps we take to protect our
proprietary rights may be inadequate and our business could be adversely
affected.
If we are unable to retain or acquire the necessary domain names, our brand and
reputation could be damaged and we could lose customers.
We currently hold the Web domain names ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇.▇▇▇. The acquisition and maintenance of domain names
generally is regulated by governmental agencies and their designees.
In the United States, the National Science Foundation has appointed
Network Solutions, Inc., and recently several others, as the current registrars
for the ".com", ".net" and ".org" generic top-level domains. The regulation of
domain names in the United States and in foreign countries is subject to
-8-
change in the near future. As a result, we may be unable to acquire or maintain
relevant domain names in all countries in which we conduct business.
Furthermore, the relationship between regulations governing domain names and
laws protecting trademarks and similar proprietary rights is unclear. Therefore,
we may be unable to prevent third parties from acquiring domain names that are
similar to, infringe upon or otherwise decrease the value of our trademarks and
other proprietary rights. In addition, if other parties acquire domain names
that are similar to ours and confuse our web site with another party's, our
brand could diminish.
Internet users may make online purchases of travel products and services on the
web sites of travel suppliers rather than the web site of a vacation provider
such as Affinity.
Innovations in online technology such as the Internet have increased the
ability of travel suppliers to distribute their travel products and services
directly to travelers. Travelers can now use the Internet to access information
about travel products and services and to purchase these products and services
directly from suppliers, thereby bypassing vacation providers such as Affinity.
Although we have a strategy to capitalize on the emergence of the Internet as a
primary distribution channel, our strategy may be unsuccessful and may
negatively impact our relationship with retail travel agents if Internet users
go directly to travel suppliers' web sites.
Our failure to maintain our relationships with travel suppliers would materially
and adversely affect our business.
We are dependent upon travel suppliers for access to their products and
services. Our travel suppliers generally can cancel or modify their agreements
with us upon relatively short notice. In addition, any decline in the quality of
travel products and services provided by these suppliers or a perception by
travelers of such a decline could adversely affect our reputation. Any of the
following could have a material adverse effect on our business, financial
condition and results of operation:
o loss of travel supplier contracts;
o changes in our preferred pricing agreements, commissions schedules
or commission arrangements;
o more restricted access to travel suppliers' products and services;
or
o less favorable public opinion of certain travel suppliers and
resulting low demand for the products and services of such travel
suppliers.
Our rapid growth involves a number of risks that could have a negative impact on
our results of operations.
We have grown very rapidly, and we expect to continue to grow quickly in
our current fiscal year as we implement our Internet-based travel service
strategy. Our management group has been assembled only recently and, as a
result, our management group may be unable to manage effectively our
organization and or implement our Internet-based strategy. In addition, the
rapid pace of our growth has, and will continue to, put pressure on our
personnel, accounting, management information, technology and corporate support
systems. Any inadequacy of these systems to manage the increased size and scope
of operations resulting from our growth or our inability to integrate
successfully any future acquisition could materially adversely affect our
business, financial condition and results of operations.
If we are unable to manage our growth and the related expansion in our
operations effectively, our business may be harmed.
-9-
We expect to continue to grow internally and through acquisitions. We
expect to spend significant time and effort expanding our existing businesses
and identifying, completing and integrating acquisitions. There can be no
assurance that our systems, procedures and controls will be adequate to support
our operations as they expand. Any future growth also will impose significant
added responsibilities on members of our senior management, including the need
to identify, recruit and integrate new senior level managers and executives.
There can be no assurance that such additional management will be identified or
retained by us. To the extent that we are unable to manage our growth
efficiently and effectively, or are unable to attract and retain qualified
management, our business, financial condition and results of operations could be
materially adversely affected.
Factors affecting our ability to experience internal growth include, but
are not limited to:
o the ability to expand the travel services offered;
o continued relationships with certain travel providers and travel
agents;
o the ability to recruit and retain qualified sales personnel;
o the ability to cross-sell services; and
o continued access to capital.
The success of our business depends on the continuing contribution of our key
personnel, including ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, our President and Chief Executive
Officer, and our other executive officers.
Our operations are dependent on the efforts and relationships of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and the other executive officers as well as the senior management of
our organization. We will likely be dependent on the senior management of our
organization for the foreseeable future. If any of these individuals becomes
unable to continue in their role, our business or prospects could be adversely
affected. For example, the loss of ▇▇. ▇▇▇▇▇▇▇▇ could inhibit the development
and enhancement of our web site and could damage customer relations and our
brand. Although we have entered into an employment agreement with several of our
executive officers, including ▇▇. ▇▇▇▇▇▇▇▇, there can be no assurance that these
individuals will continue in their present capacity for any particular period of
time. We do not maintain key man life insurance covering any of our executive
officers or other members of senior management.
Our operating results may fluctuate due to seasonality and other factors.
The domestic and international leisure travel industry is seasonal. Our
historical results have been subject to quarterly fluctuations caused primarily
by the seasonal variations in the travel industry, especially the leisure travel
segment. Our revenues have historically been higher in the second and third
quarters. We expect seasonality to continue in the future.
Quarterly results of operations may also be subject to fluctuations as a
result of a number of other factors including:
o the timing and cost of acquisitions;
o changes in the mix of services offered by us as a result of
acquisitions;
o internal growth rates among various travel segments;
o fare wars by travel providers;
o changes in relationships with certain travel providers;
o the timing of the payment of overrides by travel providers;
o extreme weather conditions; and o other factors affecting travel.
-10-
Unexpected variations in quarterly results could also adversely affect the
price of our common stock, which could limit our ability to make acquisitions or
raise additional equity capital and or debt.
Changes in consumer preferences or discretionary consumer spending could
negatively impact our results.
Our continued success depends, in part, upon the popularity of vacations
to Hawaii, Mexico, the Caribbean and Florida. A downturn in the overall United
States economy or shifts in consumer vacation preferences could materially
adversely affect our business, financial condition and results of operations.
Also, our success depends to a significant extent on numerous factors affecting
discretionary consumer spending, including economic conditions, disposable
consumer income and consumer confidence. Adverse changes in these factors could
reduce our sales or impose practical limits on pricing, either of which could
have a material adverse effect on our business and results of operations.
The travel industry is subject to extensive government regulation and taxation.
Many travel suppliers, particularly airlines, are subject to extensive
regulation by federal, state and foreign governments. In addition, the travel
services industry is subject to certain special taxes by federal, state, local
and foreign governments, including hotel bed taxes, car rental taxes, airline
excise taxes and airport taxes and fees. New or different regulatory schemes and
changes in tax policy could have an adverse impact on the travel service
industry in general and could have a material adverse affect on our business,
financial condition, and results of operations. Changes in tax policy for online
purchases, including travel purchases, could also have a material adverse affect
on our business, financial conditions and results of operations.
The travel industry is subject to numerous risks that may also affect our
business, financial condition and result of operations.
Our results of operations will depend upon factors affecting the vacation
industry in general. Our revenues and earnings are especially sensitive to
events that affect domestic and international air travel and the level of car
rentals and hotel reservations. A number of factors could result in a temporary
or long-term overall decline and demand for packaged vacations, including:
o political instability;
o armed hostilities;
o international terrorism;
o labor disturbances;
o a rise and fuel prices or other travel costs, or a surcharge imposed
by a travel provider to offset rising fuel prices;
o excessive inflation;
o currency fluctuations;
o extreme weather conditions; and
o concerns about passenger safety.
We believe that price-based competition will continue for the foreseeable
future. The continuation of such competition and the occurrence of any of the
events mentioned above could have a material adverse effect on our business,
financial condition and results of operations. In addition, demand for our
products and services may be significantly affected by the general level of
economic activity and employment in the United States and key international
markets. Therefore, any significant economic down turn or any
-11-
recession in the United States or these other markets could have a material
adverse effect on our business, financial condition in the result operations.
We may be unable to make attractive acquisitions or integrate acquired
companies.
We plan to acquire or make investments in complementary businesses,
products, services or technologies. However, we cannot assure you that we will
be able to identify suitable acquisition or investment candidates.
Even if we do identify suitable candidates, we cannot assure you that we
will be able to make acquisitions or investments on commercially acceptable
terms. If we buy a business, we could have difficulty in assimilating that
company's personnel, operations, products, services or technologies into our
operations. These difficulties could disrupt our ongoing business, distract our
management and employees, increase our expenses and adversely affect our results
of operations. Furthermore, we may incur debt or issue equity securities to pay
for any future acquisitions. The issuance of equity securities would dilute our
existing stockholders interest in Affinity.
Any future acquisitions we make may not be profitable.
Part of our business strategy is to identify and acquire travel related
Internet organizations in the travel services industry. Future acquisitions may
involve a number of risks that could adversely affect our business, results of
operations and financial condition. These could include adverse short-term
effects on our reported operating results such as those caused by severance
payments to employees of acquired companies, difficulties in eliminating
duplicative costs, restructuring charges associated with the acquisitions and
other expenses associated with the change of control, as well as non-recurring
acquisition costs. Acquisitions may also divert management's attention, create
difficulties with retention, hiring and training of key personnel, raise risks
associated with unanticipated problems or legal liabilities and require non-cash
accounting charges associated with the amortization of acquired intangible
assets. Furthermore, although we conduct due diligence and generally require
representations, warranties and indemnification from the former owners of
acquired companies, those former owners may not accurately represent the
financial and operating conditions of their companies and may not have the means
to satisfy their indemnification obligations. If an acquired company's financial
or operating results were misrepresented, the acquisition could have a material
adverse affect on our business, financial condition and results of operations.
Financing of future acquisitions will dilute existing stockholder ownership.
We intend to finance future acquisitions by using shares of our common
stock for a substantial portion of the consideration to be paid. This reliance
upon the use of common stock as consideration may cause shareholders dilution of
ownership.
RISKS RELATED TO THE OFFERING
We may be removed from the OTC Bulletin Board.
Our common stock is currently quoted on the OTC Bulletin Board, which is
administered by the National Association of Securities Dealers, Inc. The Board
of Governors of the NASD recently enacted a rule which provides for the removal
from the OTC Bulletin Board of the stock of any company that does not file
periodic reports with the SEC pursuant to the Exchange Act before a specified
date. We do not currently file periodic reports with the SEC because our common
stock is not registered under the Exchange Act. We intend to register our common
stock under the Exchange Act and commence filing
-12-
periodic reports with the SEC upon the effectiveness of this registration
statement. If we fail to register our common stock under the Exchange Act prior
to May 3, 2000, then our common stock will be removed from the OTC Bulletin
Board and quotations for our common stock would no longer be available on the
OTC Bulletin Board. The removal of our common stock from the OTC Bulletin Board
would have a material adverse effect on the price of and any trading market for
our common stock. In addition, the removal of our common stock from the OTC
Bulletin Board would have a material adverse effect on our ability to raise
additional capital.
We have never paid dividends and we do not expect to pay any dividends in the
near future.
We intend to retain any future earnings in order to finance our planned
operations and to implement our business plan. A potential purchaser of the
common stock should not rely on dividends from the common stock offered hereby
as a possible source of income.
The market price of our common stock may fluctuate due to low trading volume.
Historically, the trading volume of our common stock on the OTC Bulletin
Board has been low compared with many other OTC Bulletin Board companies. Due to
its low trading volume, the market price of our common stock may fluctuate
significantly. Attempts to purchase or sell relatively small amounts of our
common stock could cause the market price of our common stock to fluctuate. Low
trading volume levels may also affect our stockholders' ability to sell shares
of our common stock quickly at the current market price. In addition, sales of
substantial amounts of our common stock, or the perception that such sales could
occur, could adversely affect the prevailing market prices for our common stock.
Market prices of emerging Internet companies have been highly volatile, and the
market for our common stock may by highly volatile as well. Litigation may be
instituted following severe market price volatility.
The stock market has experienced significant price and trading volume
fluctuations, and the market prices of technology companies, particularly
Internet companies, have been highly volatile. The market price of our common
stock may be subject to significant fluctuations in response to numerous
factors, including:
o variations in our annual or quarterly financial results or its
competitors;
o changes by financial research analysts in their estimates of our
earnings or our failure to meet such estimates;
o conditions in the economy in general or in the travel industry in
particular; and
o unfavorable publicity or changes in applicable laws and regulations
(or judicial or administrative interpretations thereof) affecting us
or the travel service industry.
In the past, following periods of volatility in the market price of a
public company's securities, securities class action litigation has often been
instituted against that company. Such litigation could result in substantial
costs and a diversion of management's attention and resources.
The interests of our controlling stockholder may conflict with your interests.
As of February 1, 2000, ▇▇▇▇▇▇▇▇▇ Venture Capital, LLC and trusts
controlled by his spouse, beneficially own approximately 60.1% of our
outstanding common stock, which includes outstanding warrants to purchase
6,450,000 shares of our common stock at a purchase price of $.25 per share. As a
-13-
result, in practical effect, they control the election of our board of
directors, all matters requiring approval by our stockholders, including
approval of significant corporate transactions, and the directions of our
business. ▇▇▇▇▇▇▇▇▇ Venture Capital, LLC and trusts controlled by his spouse
could exercise their voting control in ways which adversely affect your
interests.
A substantial number of our securities may be sold in the market in the future.
This could cause our stock price to decline significantly, even if our business
is doing well.
The market price of our common stock could decline as a result of sales by
our existing stockholders of a large number of shares of our common stock in the
market after this offering or the perception that such sales could occur. These
sales also might make it more difficult for us to sell equity securities in the
future at a time and at a price that we deem appropriate. As of February 1,
2000, we have approximately 13,880,828 shares of common stock outstanding. Of
those shares, approximately 4,331,114 shares will effectively be freely tradable
without restriction under the Securities Act of 1933, as amended. Approximately
3,034,300 shares are eligible for sale under Rule 144, subject to certain
restrictions on affiliates of Affinity under Rule 144, and approximately
6,515,414 shares will be eligible for sale in the public market without
registration at different times during the next twelve months, subject to
certain volume and other limitations, pursuant to Rule 144 under the Securities
Act. We plan to register a substantial number of shares that are not currently
eligible for sale without restriction under Rule 144. In addition, there are
outstanding warrants to purchase 8,750,000 shares of Common Stock at a purchase
price of $.25 per share, and there are outstanding options to purchase 2,015,000
shares of Common Stock at a weighted average exercise price of $.50 per share.
The sale of even a small number of the outstanding shares of common stock may
have a material adverse effect on the quoted price of our common stock. The sale
of any such shares may also have a material adverse effect on our ability to
raise capital.
Investors will suffer immediate and substantial dilution.
Investors will suffer immediate and substantial dilution upon the issuance
of additional shares of common stock that are currently subject to outstanding
warrants and options to purchase shares of our common stock.
Anti-takeover provisions in our charter document could prevent or delay a change
in control of our company.
Our articles of incorporation, as amended, may discourage, delay or
prevent a merger or acquisition that a stockholder may consider favorable by:
o Authorizing blank check preferred stock, a type of stock with terms
and conditions set by the board of directors alone without further
stockholder approval; such preferred stock could be issued with more
voting power than the common stock, effectively giving control of
the company to the holders of preferred stock. An issuance of this
type of preferred stock could make it more difficult for a third
party to acquire, or discourage a third party from attempting to
acquire, a majority of our outstanding voting stock. The existence
of blank check preferred stock could facilitate the introduction of
a poison pill rights distribution which could discourage or delay a
merger or acquisition.
RISKS RELATED TO THE INTERNET INDUSTRY
We depend on the Internet and the development of the Internet infrastructure.
-14-
Our success will depend in large part on continued growth in, and the use
of, the Internet for commerce. The electronic commerce market is new and rapidly
evolving, and the extent of consumer acceptance is uncertain. The issues
concerning the commercial use of the Internet that we expect to affect the
development of the market for our services include security, reliability, cost
of access, ease of access, ease of use, speed and quality of service.
In addition, popular companies that provide access to Internet
transactions through network access or web browsers, such as America Online,
Yahoo, Lycos and Microsoft, could promote our competitors or charge us a
substantial fee for connection to our web site. Either of these developments
could adversely affect our business.
Our business is subject to government regulation of the Internet and other legal
uncertainties which could negatively impact our operations.
Specific laws and regulations concerning the use of the Internet have been
enacted. In particular, as directed by Congress in the Children's Online Privacy
Protection Act, also known as COPPA, the Federal Trade Commission recently
adopted regulations, effective April 21, 2000, prohibiting unfair and deceptive
acts and practices in connection with the collection and use of personal
information obtained from children under 13 years old on the Internet. Because
our web site is not directed at children and we do not anticipate its widespread
use by children, COPPA and the FTC's regulations should not have a significant
effect upon our business. While we expect to have a privacy policy designed to
enhance the protection of the privacy of our users, there can be no assurance
that these programs will conform with any regulations which have been adopted by
the FTC. Nevertheless, the FTC has strongly advocated that general audience web
sites establish privacy policies that include procedures to disclose and notify
users of privacy and security policies, obtain consent from users for collection
and use of information, and provide users with the ability to access, correct
and delete personal information stored by the company. While we expect to adopt
a privacy policy regarding use of personal user information and expect to post
this policy on our web site, there can be no assurance that we will adopt
policies that conform with the regulations adopted or policies advocated by the
FTC or any other federal or state governmental entity.
It is also possible that cookies, or information keyed to a specific
server, file pathway or directory location that is stored on a user's hard
drive, which are used to track demographic information and to target
advertising, may become subject to laws limiting or prohibiting their use.
Limitations on or elimination of our use of cookies could limit the
effectiveness of our ability to market to certain users, which could have a
material adverse effect on our business, results of operations and financial
condition.
The European Union has adopted a directive that imposes restrictions on
the collection and use of personal data. Under the directive, EU citizens are
guaranteed rights to access their data, rights to know where the data
originated, rights to have inaccurate data rectified, rights to recourse in the
event of unlawful processing and rights to withhold permission to use their data
for direct marketing. The directive could, among other things, adversely affect
U.S. companies that collect information over the Internet from individuals in EU
member countries, and may impose restrictions that are more stringent than
current Internet privacy standards in the United States. We may ultimately
engage in data collection from users in EU member countries. If we do, we would
be subject to the EU directive.
We intend to take the necessary measures to ensure that our web site
complies with industry standards relating to user privacy.
The U.S. Omnibus Appropriations Act of 1998 places a moratorium on taxes
levied on Internet access from October 1, 1998 to October 21, 2001. However,
states may place taxes on Internet access if taxes had already been generally
imposed and actually enforced prior to October 1, 1998. States which can
-15-
show they enforced Internet access taxes prior to October 1, 1998 and states
after October 21, 2001 may be able to levy taxes on Internet access resulting in
increased cost to access to the Internet, resulting in a material adverse effect
on our business.
The laws governing the use of the Internet, in general, remain largely
unsettled, even in areas where there has been some legislative action. It may
take years to determine whether and how existing laws such as those governing
intellectual property, privacy, libel and taxation apply to the Internet. In
addition, the growth and development of the market for online commerce may
prompt calls for more stringent consumer protection laws, both in the United
States and abroad. This occurrence may impose additional burdens on companies
conducting business online by limiting how information can flow over the
Internet and the type of information that can flow over the Internet. The
adoption or modification of laws or regulations relating to the Internet could
adversely affect our business.
We may be liable for the content we provide on our web site or which is accessed
from our web site.
We believe that our future success will depend in part upon our ability to
deliver original and compelling descriptive content on the Internet. As a
publisher of online content, we face potential liability for defamation,
negligence, copyright, patent or trademark infringement, or other claims based
on the nature and content of materials that we publish or distribute. In the
past, plaintiffs have brought such claims and sometimes successfully litigated
them against online services. Although we carry general liability insurance, our
insurance may not cover claims of these types or may be inadequate to indemnify
us for all liability that may be imposed on us. If we face liability,
particularly liability that is not covered by our insurance or is in excess of
our insurance coverage, then our reputation and our business may suffer.
Our revenues and reputation would be adversely affected if our security measures
fail.
Consumer concerns regarding the security of transactions conducted on the
Internet and users' privacy may inhibit the growth of use of the Internet and
electronic commerce. To securely transmit confidential information, such as
customer credit card numbers, we rely on encryption and authentication
technology that we license from third parties. We cannot predict whether we will
experience compromises of, or breaches in, the technologies we use to protect
customer transaction data.
We may need to expend significant additional capital and other resources
to protect against security breaches or alleviate problems caused by any such
breaches. We cannot guarantee that security breaches will not occur. If our
security measures fail, our business could be harmed. Any penetration of our
network security or misappropriation of our users' personal or credit card
information could subject us to liability. Claims could also be based on other
misuses of personal information, including the use of this information for
unauthorized marketing purposes. These claims could result in litigation.
Our revenues and reputation would be adversely affected if we experience
significant credit card fraud.
Under current credit card practices, merchants are liable for fraudulent
credit card transactions where, as is the case with the transactions we process,
the merchant does not obtain a cardholder's signature. We may be liable for
claims based on unauthorized purchases with credit card information,
impersonation or other similar fraud claims. A failure to adequately control
fraudulent credit card transactions would harm our business.
-16-