-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CnKkGRNiAglcetDdKaXi5UeA5P6/Ij6fDCuKUmPnw1QCV6AOkZLDTsnKgisBDNo7 p1dlbNNH9HKfkFDVynotQw== /in/edgar/work/0000784961-00-000042/0000784961-00-000042.txt : 20001114 0000784961-00-000042.hdr.sgml : 20001114 ACCESSION NUMBER: 0000784961-00-000042 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 20000930 FILED AS OF DATE: 20001113 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VDC COMMUNICATIONS INC CENTRAL INDEX KEY: 0000784961 STANDARD INDUSTRIAL CLASSIFICATION: [4813 ] IRS NUMBER: 061524454 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 001-14281 FILM NUMBER: 760361 BUSINESS ADDRESS: STREET 1: 75 HOLLY HILL LANE CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2038695100 MAIL ADDRESS: STREET 1: 75 HOLLY HILL LANE CITY: GREENWICH STATE: CT ZIP: 06830 FORMER COMPANY: FORMER CONFORMED NAME: VDC CORP LTD DATE OF NAME CHANGE: 19960117 10-Q 1 0001.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q [ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Quarter Ended September 30, 2000 [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Transition Period From To -------- -------- VDC COMMUNICATIONS, INC. ------------------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 001-14281 061524454 ------------------------------- -------------------- ------------------- (Jurisdiction of Incorporation) (Commission File No.) (IRS Employer Identification No.) 75 Holly Hill Lane Greenwich, Connecticut 06830 (Address of principal executive office) ------------------------------------------------------------------ Registrant's telephone number, including area code: (203) 869-5100 Not Applicable ------------------------------------------------------------------ (Former name, if changed since last report) Check whether the Registrant: (1) filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the past 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. (1) Yes X No ----------------- ----------------- (2) Yes X No ----------------- ----------------- Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date. As of, November 8, 2000, the number of shares of registrant's common stock, par value $.0001 per share, outstanding was 24,398,029. 1 VDC COMMUNICATIONS, INC. INDEX -----
PART I FINANCIAL INFORMATION PAGE - ------------------------------ ---- Item 1. Financial Statements Consolidated balance sheets as of June 30, 2000 And September 30, 2000 3 Consolidated statements of operations and comprehensive loss for the three-month periods ended September 30, 2000 and 1999 4 Consolidated statements of cash flows for the three-month periods ended September 30, 2000 and 1999 5 Notes to consolidated financial statements 6-9 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 9-17 Item 3. Quantitative and Qualitative Disclosures About Market Risk 17 PART II OTHER INFORMATION - -------------------------- Item 1. Legal Proceedings 18-19 Item 2. Changes in Securities and Use of Proceeds 19 Item 3. Defaults Upon Senior Securities 19 Item 4. Submission of Matters to a Vote of Security Holders 19 Item 5. Other Information 19 Item 6. Exhibits and Reports on Form 8-K 19-21
2 Part 1 - Financial Information Item 1. Financial Statements VDC COMMUNICATIONS, INC. AND SUBSIDARIES CONSOLIDATED BALANCE SHEETS ----------------------------------------
September 30, June 30, 2000 2000 ---- ---- (Unaudited) Assets Current: Cash and cash equivalents $ 123,207 $ 772,125 Marketable securities - 51,213 Accounts receivable, net of allowance for doubtful accounts of $504,088 280,957 935,217 Notes receivable 172,500 - Other current assets 218,033 - ------------------------------------- Total current assets 794,697 1,758,555 Property and equipment, less accumulated depreciation 3,574,648 4,286,707 Intangibles, net 3,320,747 3,643,193 Investment in MCC 140,000 140,000 Other assets 320,240 506,058 ------------------------------------- Total assets $ 8,150,332 $ 10,334,513 ===================================== Liabilities and Stockholders' Equity Current: Accounts payable and accrued expenses $ 3,308,839 $ 3,748,037 Unearned revenue 412,642 463,585 Current portion of long term debt 86,652 71,490 Current portion of capitalized lease obligations 183,320 178,341 ------------------------------------- Total current liabilities 3,991,453 4,461,453 Long-term portion of long term debt 194,876 224,077 Long-term portion of capitalized lease obligations 473,742 521,482 ------------------------------------- Total liabilities 4,660,071 5,207,012 Commitment and Contingencies Stockholders' equity: Preferred stock, $0.0001 par value, authorized 10 million shares; issued and outstanding-none - - Common stock, $0.0001 par value, authorized 50 million shares issued - 25,825,347 and 25,200,347 at September 30 and June 30, 2000, respectively 2,583 2,520 Additional paid-in capital 72,181,243 71,556,305 Accumulated deficit (68,463,391) (65,904,573) Treasury stock - at cost, 1,958,543 and 1,875,000 shares at September 30 and June 30, 2000, respectively (230,174) (164,175) Accumulated other comprehensive income (loss) - (362,576) ------------------------------------- Total stockholders' equity 3,490,261 5,127,501 ------------------------------------- Total liabilities and stockholders' equity $ 8,150,332 $ 10,334,513 =====================================
See accompanying notes to consolidated financial statements. 3 VDC COMMUNICATIONS, INC. AND SUBSIDARIES CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS (UNAUDITED) ----------------------------------------------------------------
Three Months ended September 30, 2000 1999 ---- ---- Revenue $ 2,022,178 $ 2,312,197 Operating Expenses Costs of services 2,372,602 2,598,857 Selling, general and administrative expenses 1,279,270 712,436 Goodwill amortization 274,293 - Asset impairment charges 63,094 - Loss on sale of fixed assets 239,117 - ------------------------------------ Total operating expenses 4,228,376 3,311,293 ------------------------------------ Operating loss (2,206,198) (999,096) Other income (expense): Realized loss on marketable securities (347,789) - Other income (expense) (4,831) 23,599 ------------------------------------ Total other income (expense) (352,620) 23,599 ------------------------------------ Net loss (2,558,818) (975,497) Other comprehensive income (loss), net of tax: Unrealized (loss) on marketable securities - (21,087) ------------------------------------ Comprehensive loss $ (2,558,818) $(996,584) ------------------------------------ Net loss per common share - basic and diluted $ (0.10) $ (0.05) ------------------------------------ Weighted average number of shares outstanding 25,825,347 18,173,582 ------------------------------------
See accompanying notes to consolidated financial statements. 4 VDC COMMUNICATIONS, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED) -------------------------------------------------
Three Months ended September 30, 2000 1999 ---- ---- Cash flows from operating activities: Net loss $(2,558,818) $ (975,497) Adjustments to reconcile net loss to net cash provided by operating activities: Depreciation and amortization 613,081 272,122 Loss on disposal of fixed assets 239,117 - Impairment of long-lived assets 63,094 - Realized loss on marketable securities 347,789 - Provision for doubtful accounts - 100,244 Changes in operating assets and liabilities: Restricted cash - 165,905 Accounts receivable 654,260 (625,307) Other assets (21,519) (51,145) Accounts payable and accrued expenses (439,199) 765,763 Unearned revenue (50,943) - ----------------------------------- Net cash used by operating activities (1,153,138) (347,915) Cash flows from investing activities: Proceeds from sale of equipment 68,000 - Proceeds from repayment of notes receivable - 205,000 Refund of fixed asset acquisition - 210,018 Fixed asset acquisition (131,980) (97,498) ----------------------------------- Net cash flows provided by (used) investing activities (63,980) 317,520 Cash flows from financing activities: Proceeds from issuance of short-term debt - 80,000 Repayments on long term debt (14,039) - Proceeds from issuance of common stock 625,000 - Repayments on capital lease obligations (42,761) (149,656) ----------------------------------- Net cash flows provided by (used) in financing activities 568,200 (69,656) ----------------------------------- Net (decrease) in cash and cash equivalents (648,918) (100,051) Cash and cash equivalents, beginning of period 772,125 317,799 ----------------------------------- Cash and cash equivalents, end of period $ 123,207 $ 217,748
See accompanying notes to consolidated financial statements. 5 VDC Communications, Inc. and Subsidiaries Notes to consolidated financial statements 1. General These consolidated financial statements for the three month periods ended September 30, 2000 and 1999 and the related footnote information are unaudited and have been prepared on a basis substantially consistent with the audited consolidated financial statements of VDC Communications, Inc. and its subsidiaries (collectively, "VDC" or the "Company") as of and for the year ended June 30, 2000 included in the Company's Form 10-K as filed with the Securities and Exchange Commission. These financial statements should be read in conjunction with the audited financial statements and the related notes to consolidated financial statements of the Company as of and for the year ended June 30, 2000 included in the Company's Form 10-K. In the opinion of management, the accompanying unaudited consolidated financial statements contain all adjustments (consisting of normal recurring adjustments) which management considers necessary to present fairly the consolidated financial position of the Company at September 30, 2000, the results of its operations for the three month periods ended September 30, 2000 and 1999 and its cash flows for the three-months ended September 30, 2000 and 1999. The results of operations for the three month periods ended September 30, 2000 may not be indicative of the results expected for any succeeding quarter or for the entire year ending June 30, 2001. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the financial statements. Actual results could differ from those estimates. Cost of services includes depreciation and amortization attributable to operating equipment of $268,502 and $258,222 during the three-months ended September 30, 2000, and 1999, respectively. Selling, general and administrative expenses include depreciation and amortization of $70,286 and $13,900 and bad debt expense of $0 and $100,244 during the three months ended September 30, 2000, and 1999, respectively. Loss per common share is calculated by dividing the loss attributable to common shares by the weighted average number of shares outstanding. Outstanding common stock options and warrants are not included in the loss per share calculation as their effect is anti-dilutive. 2. Business Segment Information At September 30, 2000, VDC had two business segments, retail long distance telecommunications ("Retail") and wholesale long distance telecommunications ("Wholesale"). Retail provides domestic and international long distance services to residential and small business customers located within the United States. Wholesale provides domestic and international long distance services and rental of VDC's circuit switching facilities to U.S. and foreign based telecommunications companies. Other segments include the management of domestic tower sites that provide transmission and receiver locations for wireless communications companies and certain corporate assets and non-allocable corporate expenses. 6 The Company evaluates performance based on profit or loss from operations. There were no intercompany sales among Wholesale and Retail and both segments are currently managed separately. Operating results and other financial data presented for the wholesale and retail segments of the Company are as follows:
Wholesale Retail Telecommunications Telecommunications Corporate Services Services and Other Totals --------------------------------------------------------------------- Three Months Ended September 30, 2000 Segment Revenue 943,239 1,050,344 28,595 2,022,178 Segment Loss (622,496) (1,606,811) (329,511) (2,558,818) Segment Assets 3,484,012 4,170,501 495,819 8,150,332 Goodwill - net of accumulated amortization - 3,017,224 - 3,017,224 Investment in MCC - - 140,000 140,000 Three Months Ended September 30, 1999 Segment Revenue 2,279,643 - 32,554 2,312,197 Segment Loss (819,024) - (156,473) (975,497) Segment Assets 6,852,745 - 3,098,174 9,950,919 Investment in MCC - - 2,400,000 2,400,000
3. Sale and/or abandonment of equipment In August 2000, the Company recognized a loss of $126,426 on the sale of a long distance telecommunications switch located in Colorado. The consideration received consisted of a note receivable of $172,500 and cash of $52,500. The note bears interest at 10% per annum and is due in full on November 25, 2000. In September 2000, the Company recognized a loss of $112,691 on the sale of other equipment located in Colorado. The consideration received consisted of cash of $15,500. During the quarter ended September 30, 2000, the Company recognized an impairment loss of $63,094 in connection with the abandonment of the Colorado telecommunications switch site location. 4. Capital Transactions In July 2000, VDC sold 625,000 shares of common stock to unrelated investors at $1.00 per share, the public market price at that time. 5. Subsequent Event Convertible Debentures VDC's board of directors has approved a private placement of an aggregate of $650,000 of 8% convertible senior debentures, which we expect would, to a limited extent, fund operating losses. The proposed investors have not yet provided a definitive commitment for the transaction (nor can there be any assurance that they will complete the transaction). The debentures would mature three (3) years from the date of issuance, accrue interest at the rate of 8% per annum payable upon maturity and be prepayable, at VDC's discretion, at any time upon thirty (30) days written notice. The principal amount of the debentures and all accrued interest would be convertible in the investors' discretion. The 7 debentures would be secured by a first priority perfected security interest on substantially all of the assets of VDC. The proposed investors include Frederick A. Moran, VDC's Chairman and Chief Executive Officer, and affiliates of Mr. Moran and family trusts associated with Mr. Moran, and one non-affiliated investor. Any debentures issued to Mr. Moran and affiliates of Mr. Moran and family trusts associated with Mr. Moran would be convertible at $0.1875 per share, so long as such amount is not less than the closing market price of VDC's common stock on the date the transaction closes. Any debentures issued to the non-affiliated investor would be convertible at $0.145 per share. VDC's use of any proceeds from the debentures would be restricted to, among other things, advances to its subsidiaries to pay operational expenses other than accounts payable outstanding as of the date of issuance. A breach of this covenant would constitute an event of default under the debentures and would, in the investors' discretion, result in the immediate acceleration of VDC's obligation to repay the debentures. VDC would agree to grant piggyback registration rights to the purchasers of the debentures to include the shares issuable upon conversion of the debentures in a registration statement filed by VDC. The investors in this transaction have not agreed to complete the financing at this date and are awaiting certain conditions prior to making their final investment determination. Even if these certain conditions are met, the investors have reserved the right not to complete the transaction in their sole discretion. Option Repricing In light of the decline in market price of the Company's common stock as of October 2000, the Board of Directors believed that the outstanding stock options with an exercise price in excess of the actual market price were no longer an effective tool to encourage employee retention or to motivate high levels of performance. As a result, in October 2000, the Board of Directors approved an option repricing program under which options to acquire shares of common stock that were originally issued with exercise prices above $0.1875 per share were reissued with an exercise price of $0.1875 per share (or $0.20625 in the case of the CEO and his wife), the fair market value of the common stock at the repricing date. These options will continue to vest under the original terms of the option grant. Options to purchase 2,529,000 shares of Company common stock were affected by the repricing program. Options to purchase 1,345,000 shares of common stock granted to executive officers and members of the Board of Directors were affected by the repricing program. In March 2000, the Financial Accounting Standards Board ("FASB") issued FASB Interpretation No. 44 "Accounting for Certain Transactions involving Stock Compensation an interpretation of APB No. 25". Among other issues, this interpretation clarifies the accounting consequence of various modifications to the terms of a previously fixed stock option or award. If the exercise price of an option award is reduced, the award shall be accounted for as variable from the date of the modification to the date the award is exercised, forfeited or expires unexercised. The interpretation requires a charge to operations for the difference between the quoted market value of VDC's common stock at the end of each reporting period and the option price of unexercised, outstanding stock options. The interpretation is effective July 1, 2000 but covers events that occur after December 15, 1998. Thus, compensation expense may be recorded in the future as a result of this repricing. 8 6. Commitments and Contingencies Litigation In July 1999, a former customer filed suit against VDC asserting that VDC induced it to enter into an agreement through various purported misrepresentations. The suit alleges that, due to these purported misrepresentations and purported breaches of contract, the former customer has been unable to provide services to its customers. The relief sought includes monetary damages resulting from the purported breach of contract and the purported misrepresentations and the recovery of attorneys' fees. In the event that the former customer prevails, VDC could be liable for monetary damages in an amount that would have a material adverse effect on VDC's assets and operations. VDC believes that the claims asserted are without merit and VDC will, if it is served with process, vigorously defend itself against them. In the opinion of management, based on the information that it presently possesses, the claims will not have a material adverse effect on VDC's consolidated financial position, results of operations or liquidity. In addition, VDC is a defendant in another lawsuit. Management presently believes that the disposition of this lawsuit will not have a material effect on VDC's assets or operations. 7. Supplemental Disclosure of Cash Flow Information For purposes of the statement of cash flows, the Company considers all highly liquid investments with an original maturity of three months or less to be cash equivalents.
Three months ended September 30 ------------------------------- 2000 1999 ---- ---- Cash paid during the quarter for: Interest $14,911 $38,558 Schedule of non-cash financing and investing activities: Equipment exchanged for note receivable $172,500 $-
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations Cautionary Statement for Purposes of the "Safe Harbor" Provisions of the Private Securities Litigation Reform Act of 1995 When used in this Report on Form 10-Q, the words "may," "will," "expect," "anticipate," "continue," "estimate," "intend," "could," "would," and similar expressions are intended to identify forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 regarding events, conditions and financial trends which may affect VDC's future plans of operations, business strategy, operating results and financial position. Such statements are not guarantees of future performance and are subject to risks and uncertainties and actual results may differ materially from those included within the forward-looking statements as a result of various factors. Such risks may relate to, among others: (i) 9 VDC's limited capital and possible bankruptcy; (ii) VDC's ability to operate profitably; (iii) VDC's ability to secure sufficient financing in order to fund its operations; (iv) competitive and other market conditions, including pricing pressure, that may adversely affect the scope of VDC's operations; (v) VDC's dependence on certain key personnel; (vi) VDC's concentration of revenues from a couple of larger customers; (vii) network failure or complications, including service delays; (viii) VDC's ability to successfully integrate potential mergers and/or acquisitions into VDC, including the retention of certain key personnel; (ix) dependence upon a limited number of equipment vendors; (x) network capacity constraints; (xi) uncertainty as to whether the Internet will continue to grow as a medium for voice and facsimile communications; and, (xii) inherent regulatory, licensing and political risks associated with operations in foreign countries. Additional factors are in VDC's other public reports and filings with the Securities and Exchange Commission ("SEC") including a Registration Statement on Form S-3 (No. 333-46694) and a VDC prospectus dated October 27, 2000. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date made. The Company undertakes no obligation to publicly release the result of any revision of these forward-looking statements to reflect events or circumstances after the date they are made or to reflect the occurrence of unanticipated events. General VDC Communications, Inc. (referred to herein as "VDC" "we" or "us") provides long distance telecommunications services, mainly voice, but also facsimile, to its customers. VDC has two business segments, retail long distance ("Retail") and wholesale long distance ("Wholesale"). Retail focuses on reselling domestic and international long distance services to residential and small business customers in the United States. Wholesale focuses on reselling domestic and international long distance services, and rental of our circuit switching facilities, to U.S. and foreign based telecommunications companies. The global wholesale network consists of owned telecommunications switching and ancillary equipment, leased telecommunications lines and interconnect agreements with carriers and customers. Our telecommunications equipment, currently located in New York and Los Angeles comprises our operating facilities. We also generate nominal revenues from the management of domestic tower sites that provide transmission and receiver locations for wireless communications companies. During the quarter ended September 30, 2000, we re-directed most of our resources towards Retail. We have loaned material funds to our 100% owned subsidiary that operates our retail long distance services. Through this subsidiary, we have increased our retail subscribers to over 11,000, with over 8,000 currently connected to our network and over 3,000 having ordered the service and awaiting connection to the network. At the same time, we have begun to de-emphasize Wholesale and have limited the resources committed to Wholesale. We expect that revenues derived from Wholesale may continue to decrease and may be a smaller percentage of total revenues than experienced prior to October 1, 2000. We have already begun to experience this transition. Also during the quarter ended September 30, 2000, we raised $625,000 through the sale of unregistered common stock; and, rebranded our product segments through the initiation of a new website. Our web address is www.vdccorp.com. In addition, our VoIP Clearinghouse went operational during the quarter ended September 30, 2000. We have not passed any commercial telecommunications minutes, voice or facsimile calls, over our VoIP network to date. As a result of our liquidity constraints and our emphasis on Retail, we have been unable to 10 commit resources, beyond our website, to procuring customers for this network. We are considering our alternatives in regards to the further development and marketing of the VoIP network. Given our limited cash position, we have postponed activity in regards to the VoIP program and are considering the cancellation of the program. Segments 1. Retail We now have over 11,000 retail customers in the United States. The majority of the telecommunications traffic, voice phone calls, generated by our customers is originated and terminated domestically. We acquire residential customers through direct marketing via the telephone. We currently have two products that we offer to residential phone users. They provide the customer a competitive termination rate for long distance calls within the United States. Both of these services are paid for in advance by the customer, which reduces our exposure to bad debt and enhances liquidity. We currently do not utilize our own facilities to carry our retail customers' traffic, but may in the future. We refer to these services as VDC PeopleTalkSM on our website. We believe that there is significant potential to achieve higher levels of market penetration in the United States residential market. As a result, we have committed significant resources towards the development of this subsidiary. The Retail segment earns revenue from residential long distance services which are paid for in advance by the customer. The Retail segment's costs of services consist largely of telemarketing salaries, carrier costs and customer rebates. The Retail segment's costs also include selling, general, and administrative expenses ("SG&A"). SG&A consists primarily of personnel costs, professional fees, bank and credit card processing charges, office rental, advertising and postage. 2. Wholesale Wholesale focuses on providing services to other telecommunications companies. The majority of the telecommunications traffic, voice or facsimile calls, generated by these customers is terminated internationally. The international telecommunications market consists of all telecommunications traffic that originates in one country and terminates in another. The implementation of a high quality international network is an important element in enabling a carrier to compete effectively in the international long distance telecommunications market. We have international gateway switches located in New York and Los Angeles and a VoIP gateway in New York. The network is capable of interconnecting and routing a voice or facsimile call to most parts of the world. In addition, we provide use of our switch capacity and co-location of our switch site to other carriers. 11 We identify our wholesale services as those using traditional circuit switched technology and those using VoIP technology. Traditional wholesale services are referred to as VDC NetworkTalkSM on our website. VoIP wholesale services are referred to as VDC BusinessTalkSM on our website. We have postponed any further activity in regard to the VoIP network at this time. Wholesale earns revenue from two sources. Wholesale provides domestic and international telecommunications long distance services which is earned based on the number of minutes billable to our customers, which are other telephone companies. These minutes are generally billed on a monthly basis and are generally due within zero to thirty days. Our second source of revenues is derived from the rental of space and telecommunications equipment and circuits at our telecommunications facilities to other telephone companies ("Partition"). This revenue is generated and billed on a month-to-month basis. We expect Wholesale revenue to decrease during the quarter ending December 31, 2000 and possibly thereafter as a result of, in part, our de-emphasis of this business segment, which includes a reduction in the resources committed to this business segment. Partition revenues, in particular, are expected to decrease significantly during the quarter ending December 31, 2000, as a result of the loss of our largest Partition customer. Revenue derived through the per-minute transmission of voice and facsimile telecommunications traffic is normally in accordance with contracts with other telecommunications companies. These contracts are often for a year or more, but can generally be amended with a few days notice. Further, these contracts generally do not provide for a fixed volume of telecommunications traffic to be sent to us and, as such, the telecommunications traffic that a customer sends to us during any given month can vary considerably. Occasionally, however, these contracts require payments to us if a customer does not send a fixed minimum amount of telecommunications traffic to us. Costs of services is primarily comprised of costs incurred from other domestic and foreign telecommunications carriers to originate, transport and terminate calls that we send to them. The majority of our cost of service is variable, based on the number of minutes of use, with transmission and termination costs being our most significant expense. In addition, our costs of services include circuit expenses, the allocable personnel and overhead associated with operations, and depreciation of telecommunications equipment. We depreciate long distance telecommunications equipment over a period of five years. Wholesale costs also include SG&A. SG&A consists primarily of personnel costs, utilities and rent. We expect SG&A Wholesale costs to decrease mainly as a result of a reduction in personnel and rent. We have closed our Colorado office. Corporate and Other Other segments include the management of domestic tower sites that provide transmission and receiver locations for wireless communications companies and certain non-allocable corporate expenses. Nominal revenue is generated from the management of domestic tower sites that provide transmission and receiver locations for wireless communications companies. This revenue is also generated and billed on a month-to-month basis. 12 The Consolidated Financial Statements of VDC have been prepared on the basis that it is a going concern, which contemplates the realization of assets and the satisfaction of liabilities, except as otherwise disclosed, in the normal course of business. However, because of VDC's recurring losses from operations and significant arrearages on trade payables, such realization of assets and satisfaction of liabilities is subject to significant uncertainties. The Consolidated Financial Statements do not include any adjustments that might result from the outcome of these uncertainties. Furthermore, VDC's ability to continue as a going concern is highly dependent in the near term on its ability to raise capital, obtain additional retail customers, achieve profitable operations and to generate sufficient cash flow from operations and financing sources to meet obligations. Results of Operations For the Three Months Ended September 30, 2000 Compared to the Three Months Ended September 30, 1999 Revenues: Total revenues in the three months ended September 30, 2000 ("Current Quarter") decreased to approximately $2.0 million from approximately $2.3 million for the three months ended September 30, 1999 ("Prior Period"). The Wholesale segment generated revenue of approximately $607,000 during the Current Quarter by the transmission of approximately 2.4 million minutes of telecommunications traffic domestically and internationally ("Long Distance Revenue"). The Wholesale segment generated revenue of approximately $2.1 million during the Prior Period by the transmission of approximately 10.3 million minutes of telecommunications traffic domestically and internationally. The decrease is attributable, in part, to the limited resources committed to this business segment. During the Current Quarter, the Wholesale segment also generated revenue of approximately $289,000 from Partition and approximately $33,000 from contractually required payments from a customer due to its failure to provide a certain minimum level of telecommunications traffic. Wholesale generated revenue of approximately $200,000 from Partition during the Prior Period. We expect Partition revenues to decrease in the quarter ending December 31, 2000 as a result of the recent loss of our largest Partition customer. The Retail segment generated revenue of approximately $1.1 million by providing retail long distance customer services during the Current Quarter. The Retail segment was acquired in June 2000. Other segments generated approximately $29,000 from site tower management during the Current Quarter as compared to approximately $33,000 during the Prior Period. Costs of Services: Costs of services in the Current Quarter decreased to approximately $2.4 million from approximately $2.6 million in the Prior Period. Wholesale costs of services were approximately $1.1 million during the Current Quarter as compared to approximately $2.6 million during the Prior Period. The decrease was due to decreased domestic and international minutes of telecommunications traffic, which we purchased from other long distance carriers and decreased operational expenses including salaries, depreciation, and circuit costs. 13 Retail's costs of services were approximately $1.3 million during the Current Quarter. The largest components of this category included telemarketing salaries, carrier costs and customer rebates. SG&A: SG&A expenses increased to approximately $1.3 million in the Current Quarter from approximately $712,000 in the Prior Period. Wholesale's SG&A expenses were approximately $340,000 during the Current Quarter as compared to approximately $712,000 in the Prior Period. The decrease in the Current Quarter was due to a reduction in both personnel and the allocation of corporate SG&A costs to Wholesale. Retail's SG&A expenses were approximately $992,000 during the Current Quarter. The largest components of SG&A included salaries, bank and credit card processing fees, advertising, printing, postage and the allocation of corporate SG&A. Goodwill amortization: The June 2000 acquisition of our current retail subsidiary generated goodwill of approximately $3.3 million which is being amortized over 36 months, or approximately $274,000 per quarter. Loss on sale of fixed assets: Loss on sale of fixed assets in the Current Quarter was approximately $239,000. The Company recognized a loss of approximately $126,000 on the sale of a long distance telecommunications switch located in Colorado. Additionally, VDC recognized a loss of approximately $113,000 on the sale of other equipment located in Colorado. There was no gain or loss on the sale of fixed assets for the three months ended September 30, 1999. Asset impairment charges: During the three-months ended September 30, 2000, VDC recognized an impairment loss of approximately $63,000 in connection with the abandonment of the Colorado telecommunications switch site location. There were no asset impairment charges for the three months ended September 30, 1999. Other income (expense): Other income (expense) was approximately $(353,000) for the three months ended September 30, 2000 compared with approximately $24,000 for the Prior Period. Other income (expense) in the Current Quarter was mostly due to the write down of VDC's investment in Portacom Wireless, Inc. ("Portacom"). Management felt that the significant decline in value of the Portacom investment was other than temporary. Other income in the Prior Period was mostly due to an overestimation of prior years reserves for professional fees offset by interest expense incurred in connection with capital lease obligations. Liquidity and Capital Resources Net cash used by operating activities was approximately $1.2 million in the three months ended September 30, 2000, or Current Period. We collected approximately $2.7 million from customers while paying approximately $3.9 million to carriers, other vendors and employees. Net cash used by operating activities was approximately $348,000 in the three months ended September 30, 1999. In that period, we collected approximately $1.8 million from customers while paying approximately $2.1 million to carriers, other vendors and employees. Net cash used by investing activities was approximately $64,000 in the three months ended September 30, 2000. Cash was used for the acquisition of fixed assets and provided by proceeds from the sale of equipment. Net cash provided by 14 investing activities was approximately $318,000 in the three months ended September 30, 1999. Cash flows provided by investing activities included the collection of notes receivable and a sales tax refund on previously acquired switching equipment less fixed asset acquisitions. Net cash provided by financing activities was approximately $568,000 in the three months ended September 30, 2000. This reflects proceeds from the issuance of common stock less repayments on capital lease obligations and long term debt. Proceeds used by financing activities of approximately $70,000 during the three months ended September 30, 1999 reflect repayments of capital lease obligations less proceeds from the issuance of short term debt. As part of the June 30, 2000 audit, our auditors raised the issue that we may not be able to continue as a going concern as a result of a lack of profits, working capital deficiency and cash needs. A significant amount of capital has been expended towards operations and in connection with certain acquisitions and the establishment of our programs. These expenditures have been incurred in advance of the realization of gross profit that may occur as a result of such programs. The American Stock Exchange ("AMEX") has notified us that we fall below certain of AMEX's continued listing qualifications. As such, there can be no assurances of continued listing. Our liquidity requirements arise primarily from cash used in operating activities. To date, we have financed ourselves mostly through equity financing. As of November 9, 2000, we had approximately $100,000 in cash, on a consolidated basis. As of the date of this filing, our cash is not sufficient to pay one month of operating expenses. These funds are not sufficient to support either our business plans or our current rate of operating losses and we may have to file for bankruptcy. In order to continue developing our plans and operations, we need to find a source of funding. We hope to meet short term liquidity requirements by raising additional funds through equity financings or the sale of assets and we are currently exploring several financing alternatives. Liquidity and capital resources could improve within the short term by a combination of any one or more of the following factors: (i) an increase in revenues and gross profit from operations; (ii) a sale of asset(s); and (iii) debt or equity financing. An inability to generate cash from any of these factors within the short term could have an adverse material affect on our operations and plans for future growth. We are currently exploring several options in an attempt to address our liquidity concerns. These alternatives include, but are not limited to: significant cost cutting measures, which may impair VDC's ability to grow revenues, debt or equity financing, the sale of significant assets, settling accounts payable arrearages at a fraction of their current carrying value, and/or filing for bankruptcy protection. VDC's board of directors has approved a private placement as described below. However, as is also described below, the proposed investors have not yet provided a definitive commitment for the transaction (nor can there be any assurance that they will complete such transaction). VDC's board of directors has approved a private placement of an aggregate of $650,000 of 8% convertible senior debentures, which we expect would, to a limited extent, fund operating losses. The debentures would mature three (3) years from the date of issuance, accrue interest at the rate of 8% per annum payable upon maturity and be prepayable, at VDC's discretion, at any time upon thirty (30) days written notice. The principal amount of the debentures and all accrued interest would be convertible in the investors' discretion. The debentures would be secured by a 15 first priority perfected security interest on substantially all of the assets of VDC. The proposed investors include Frederick A. Moran, VDC's Chairman and Chief Executive Officer, and affiliates of Mr. Moran and family trusts associated with Mr. Moran, and one non-affiliated investor. Any debentures issued to Mr. Moran and affiliates of Mr. Moran and family trusts associated with Mr. Moran would be convertible at $0.1875 per share, so long as such amount is not less than the closing market price of VDC's common stock on the date the transaction closes. Any debentures issued to the non-affiliated investor would be convertible at $0.145 per share. VDC's use of any proceeds from the debentures would be restricted to, among other things, advances to its subsidiaries to pay operational expenses other than accounts payable outstanding as of the date of issuance. A breach of this covenant would constitute an event of default under the debentures and would, in the investors' discretion, result in the immediate acceleration of VDC's obligation to repay the debentures. VDC would agree to grant piggyback registration rights to the purchasers of the debentures to include the shares issuable upon conversion of the debentures in a registration statement filed by VDC. As referenced above, the investors in this transaction have not agreed to complete the financing at this date and are awaiting certain conditions prior to making their final investment determination. One condition is that creditors accept final payments in an amount that is a fraction of current payables. We have contacted most of our creditors in an effort to reduce payables. We have told creditors that if they refuse to settle, we will cease operations and probably file for bankruptcy. Due to certain regulatory rules and requirements, another condition of the investors is a closing market price of VDC of $0.1875 or below on the date of closing. Even if these certain conditions are met, the investors have reserved the right not to complete the transaction in their sole discretion. If the transaction discussed above is completed, it would provide us with a maximum of $650,000 of cash. Even with this additional cash, we expect that we would still not have sufficient funds to support either our business plans or our current rate of operating losses and we might have to file for bankruptcy. We would hope to find further financing at a later date if our business model succeeds and have identified certain investors who may, or may not, provide financing, given those circumstances. There can be no assurances that we will be successful in raising cash now or in the future. During the year ending June 30, 2001 to date, we have implemented cost-cutting measures in order to decrease our losses in the short term. These measures include the following: (1) Reduced personnel costs, including the release of two executive officers. There was no cash component included in the severance package for these two former officers. (2) Ceased all Colorado operations and are attempting to terminate our office lease for our Colorado area location. We have also reduced Colorado area personnel from four to zero individuals. (3) Undertook significant cost cutting measures at our retail long distance subsidiary in order to reduce losses and increase efficiency. We believe these reductions have had little, if any, negative effects on the growth of our subscriber base. We expect to cut costs further if our cash position does not improve. 16 We are projecting capital expenditures of approximately $0 to $10,000 during the remainder of calendar 2000. The capital expenditures, if any, are expected to be mainly associated with the further development of our residential services. We expect to fund these purchases through capital lease financing or proceeds from equity financing and cash flow from operations, if any. Funds may become available to us, through the monetization of certain non-strategic assets. For example, we have sold the telecommunications switch that we formerly owned and operated in Colorado. We have sold this switch for cash and a promissory note. The full amount of the promissory note, which is $172,500, is due November 25, 2000. To meet liquidity requirements in the long term, we need to increase our revenues and gross profit, which will most likely occur as a result of growth in the retail long distance business. There are no assurances, however, that these long term objectives will transpire. In order to meet these long term objectives, we believe we have to build our retail customer base to the point of critical mass. If we reach critical mass, our ongoing gross profit would likely be sufficient to pay our overhead and other expenses. Reaching critical mass is mostly a function of our marketing efforts. Maintaining our customers is also a priority and depends mostly on the competitiveness of our long distance services. Item 3. Quantitative and Qualitative Disclosures About Market Risk VDC is currently not exposed to material future earnings or cash flow exposures from changes in interest rates on long-term debt obligations since our long-term debt obligations are at fixed rates. VDC's carrying value of cash and cash equivalents, accounts receivable, accounts payable, and long term debt are a reasonable approximation of their fair value. 17 Part II - Other Information Item 1. Legal Proceedings Worldstar Suit On or about July 30, 1999, Worldstar Communications Corporation ("Worldstar") commenced an action in the Supreme Court of New York entitled Worldstar Communications Corporation v. Lindemann Capital L.P., Activated Communications, L.P., Marc Graubart, Michael Mazzone, VDC Corporation and ING Baring Furman Selz, LLC (Index No. 603621/99) (the "Action"). Worldstar asserts in the Action that, under the terms of a purported joint venture arrangement with Lindemann Capital LP ("Lindemann") and Activated Communications, LP ("Activated"), Worldstar acquired certain rights to share in the profits and ownership of a telecommunications project in Nicaragua (the "Nicaraguan Project") owned by Masatepe Comunicaciones S.A., a Nicaraguan company ("Masacom"). Masatepe Communications U.S.A., L.L.C. ("Masatepe"), which owns a 49% equity interest in Masacom, was acquired by VDC and is now a wholly-owned subsidiary of VDC. The relief sought by Worldstar included: (1) monetary damages arising out of purported interference with Worldstar's profit participation and ownership in the Nicaraguan Project; and (2) a declaratory judgment that among other things: (a) Worldstar is entitled to share in the profits and ownership of the Nicaraguan Project; and (b) the transaction pursuant to which VDC acquired an interest in the Nicaraguan Project was void. Certain of the defendants, including VDC, filed a Motion to Dismiss. In an order dated July 12, 2000, the Court dismissed Worldstar's claims against VDC demanding monetary damages arising out of purported interference with Worldstar's profit participation and ownership in the Nicaraguan Project. The Court denied VDC's Motion to Dismiss Worldstar's declaratory judgment claim against VDC. In the event that the plaintiff prevails in the Action, the value of VDC's interest in Masatepe, Masacom and/or the Nicaraguan Project could be diluted. Additionally, VDC could be held liable for certain value that may be deemed to have been derived from the operation of Masatepe and/or the Nicaraguan Project, and for related damages. However, pursuant to the Purchase Agreement through which VDC acquired Masatepe (the "Purchase Agreement"), Activated has an obligation to indemnify and hold VDC and Masatepe harmless from any loss, liability, claim, damage and expense arising out or resulting from the Action. In addition, under certain circumstances, Activated has an obligation under the Purchase Agreement to repurchase from VDC all or part of VDC's equity interest in Masatepe. Furthermore, the defendants are vigorously defending the Action. In view of the foregoing, VDC does not believe that the claims asserted in the Action will have a material adverse effect on VDC's assets or operations. StarCom Suit On or about July 12, 1999, StarCom Telecom, Inc. ("StarCom") commenced an action in the District Court of Harris County, Texas, in the 127th Judicial District entitled StarCom Telecom, Inc. vs. VDC Communications, Inc. (Civil Action No. 1999-35578) (the "StarCom Action"). StarCom asserts in the StarCom Action that VDC induced it to enter into an agreement with VDC through various purported misrepresentations. StarCom alleges that, due to these purported misrepresentations and purported breaches of contract, it has been unable to provide services to its customers. The relief sought by StarCom includes monetary damages arising out of VDC's purported misrepresentations and purported 18 breaches of contract. In the event that StarCom prevails in the StarCom Action, VDC could be liable for monetary damages in an amount that would have a material adverse effect on VDC's assets and operations. VDC does not believe that the claims asserted in the StarCom Action are either meritorious or will have a material adverse effect on VDC's assets or operations. To date, despite the fact that the StarCom Action was filed over one year ago, opposing counsel in the StarCom Action has refused to have VDC served with process. Moreover, opposing counsel filed a Motion to Withdraw as Attorney in Charge of the StarCom Action. In the event that VDC is served in the StarCom Action, it intends to defend itself vigorously. Item 2. Changes in Securities and Use of Proceeds Recent Sales of Unregistered Securities In July 2000, VDC sold 625,000 shares of VDC common stock to accredited investors in a non-public offering exempt from registration pursuant to Section 4(2) and Rule 506 of Regulation D of the Securities Act of 1933, as amended, as follows:
Shareholder Number of Shares Consideration ($) ----------- ---------------- ----------------- Alan B. Snyder 375,000 375,000 Alan B. Snyder, IRA 125,000 125,000 Merl Trust 43,125 43,125 The Lucien I. Levy Revocable Living Trust 17,500 17,500 The Elvire Levy Revocable Living Trust 10,000 10,000 O.T. Finance, SA 54,375 54,375 ------ ------ Total 625,000 625,000
No commissions were paid in connection with the foregoing transaction. Item 3. Defaults Upon Senior Securities Item not applicable. Item 4. Submission of Matters to a Vote of Securities Holders Item not applicable. Item 5. Other Information Item not applicable. Item 6. Exhibits and Reports on Form 8-K (a) Exhibits
Exhibit No. Description Method of Filing ----------- ----------- ---------------- 10.46 Form of Securities Purchase Agreement for June 2000 (1) 10.47 Form of Amendment to Securities Purchase Agreement for July 2000 (1) 19 10.48 Form of Registration Rights Agreement for June 2000 (1) 10.49 1998 Stock Incentive Plan, as Amended Through August 9, 2000 (1) 10.50 Incentive Stock Option Agreement between Frederick A. Moran and VDC Communications, (1) Inc., dated August 9, 2000 10.51 Incentive Stock Option Agreement between Clayton F. Moran and VDC Communications, (1) Inc., dated August 9, 2000 10.52 Purchase and Sale Agreement, by and between Omnetrix International, Inc. and VDC (1) Telecommunications, Inc., dated August 26, 2000 10.53 Promissory Note, dated August 26, 2000, made by Omnetrix International, Inc. in (1) favor of VDC Telecommunications, Inc. 10.54 Security Agreement, dated August 26, 2000, made by Omnetrix International, Inc. in (1) favor of VDC Telecommunications, Inc. 10.55 Promissory Note, dated June 14, 2000, made by Voice & Data Communications (Latin (1) America), Inc. in favor of VDC Communications, Inc. 10.56 Promissory Note, dated June 14, 2000, made by Voice & Data Communications (Latin (1) America), Inc. in favor of VDC Communications, Inc. 10.57 Form of Promissory Note executed by Rare Telephony, Inc. (1) 10.58 Form of Restricted Stock Agreement for September 2000 (2) 10.59 Form of Non-Qualified Stock Option for October 2000 (2) 10.60 Form of Incentive Stock Option for October 2000 (2) 10.61 Form of Stock Option Amendment for October 2000 (2) 10.62 Incentive Stock Option Agreement, dated October 16, 2000, by and between Frederick (2) A. Moran and VDC Communications, Inc. 10.63 Contract of Sale, dated October 30, 2000, by and between VDC Telecommunications, (2) Inc. and VDC Communications. 10.64 Form of Promissory Note executed by Rare Telephony, Inc. for September, October and (2) November 2000 27.1 Financial Data Schedule (2)
20 (1) Filed as an Exhibit to VDC Communications, Inc.'s Form 10-K for the year ended June 30, 2000 and incorporated herein by reference. (2) Filed herewith. (b) Reports on Form 8-K Report on Form 8-K dated June 14, 2000 reporting acquisition of Rare Telephony, Inc; An Amendment to Form 8-K (Form 8-K/A) filed with the Securities and Exchange Commission on August 25, 2000 amending a previously filed Form 8-K dated as of June 14, 2000 relative to VDC's acquisition of Rare Telephony, Inc; and Report on Form 8-K dated October 16, 2000 reporting an exploration of alternatives to address liquidity concerns and a stock option repricing. Signatures Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Form 10-Q to be signed on its behalf by the undersigned, thereunto duly authorized. VDC COMMUNICATIONS, INC. By:/s/ Clayton F. Moran Dated: November 13, 2000 ----------------------------------------- Clayton F. Moran Chief Financial Officer and Authorized Signatory 21
EXHIBIT INDEX Exhibit Number Page Number in (Referenced to Rule 0-3(b) Item 601 of Sequential Reg. S-K Numbering System Where Exhibit Can Be Found 10.58 Form of Restricted Stock Agreement for September 2000 10.59 Form of Non-Qualified Stock Option for October 2000 10.60 Form of Incentive Stock Option for October 2000 10.61 Form of Stock Option Amendment for October 2000 10.62 Incentive Stock Option Agreement, dated October 16, 2000, by and between Frederick A. Moran and VDC Communications, Inc. 10.63 Contract of Sale, dated October 30, 2000, by and between VDC Telecommunications, Inc. and VDC Communications, Inc. 10.64 Form of Promissory Note executed by Rare Telephony, Inc. for September, October and November 2000 27.1 Financial Data Schedule
22 EX-10.58 2 0002.txt EX-10.58 The following form of Restricted Stock Agreement was entered into with executive officers as follows:
Individual Number of Shares Vesting Date ---------- ---------------- ------------ Clayton F. Moran 50,000 September 25, 2001 Edwin B. Read 125,000 September 28, 2001
VDC COMMUNICATIONS, INC. ------------------------ FORM OF RESTRICTED STOCK AGREEMENT ---------------------------------- Date of Grant: , 2000 --- THIS RESTRICTED STOCK AGREEMENT (this "Agreement") made by and between VDC COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company"), and (hereinafter called the "Employee") is made as of the ---------- above date under the VDC Communications, Inc. 1998 Stock Incentive Plan, as amended from time to time, (the "Plan"). WHEREAS, pursuant to the provisions of the Plan, the Company's Board of Directors (the "Board") has taken action effective pursuant to which action ---- the Employee became eligible to receive a Restricted Stock Award in accordance with the Plan and subject to the terms and conditions set forth herein. NOW, THEREFORE, the parties hereto, intending to be legally bound, and in consideration of the covenants set forth herein, hereby agree as follows: 1. The Board hereby grants to the Employee a Restricted Stock Award for shares of Company common stock, par value $.0001 per share ------ (the "Shares"), in accordance with the Plan and subject to the terms and conditions set forth herein. 2. The Company shall deliver to Employee a copy of a certificate for the Shares registered in the name of Employee. 3. The Shares may not be sold, assigned, pledged, exchanged, hypothecated or otherwise transferred, encumbered or disposed of, except as described in the Plan, to the extent then subject to the Forfeiture Restrictions (as hereinafter defined), and in the event of termination of Employee's employment with the Company or employing Subsidiary (as defined in the Plan): (i) for Cause (as defined in the Plan) or (ii) due to the Employee's resignation, the Employee shall, for no consideration, forfeit to the Company all Shares to the extent then subject to the Forfeiture Restrictions and the Company shall immediately be authorized to surrender the Shares to the Company' 1 transfer agent for cancellation. The prohibition against transfer and the obligation to forfeit and surrender Shares to the Company upon termination of employment are herein referred to as "Forfeiture Restrictions." The Forfeiture Restrictions shall be binding upon and enforceable against any transferee of Shares. 4. The Forfeiture Restrictions shall lapse as to the Shares provided that Employee has been continuously employed by the Company or one of its Subsidiaries (as defined in the Plan) from the date of this Agreement through . ----------- 5. In no case will this Agreement result in Employee being vested in (or becoming eligible to become vested in) more than a total of Shares. ----- 6. At such time as any Shares vest under this Agreement, the Company shall issue the certificate referenced in paragraph 1 above (or any certificate issued in its place) to the Employee (reduced by any Shares withheld for taxes pursuant to the Plan, if so permitted by the Plan Administrator). The Company shall not be obligated to issue or deliver any Shares if the issuance or delivery thereof shall constitute a violation of any provision of any law or of any regulation of any government authority or national securities exchange. 7. The original of any certificate for unvested Shares issued pursuant to this Agreement shall, until any of such Shares become vested, remain in the custody of the Company. 8. Employee agrees that the Shares will not be sold or otherwise disposed of in any manner which would constitute a violation of any applicable federal or state securities laws. Employee also agrees: (i) that the certificates representing the Shares may bear such legend or legends as the Company deems appropriate in order to assure compliance with applicable securities laws or this Agreement; (ii) that the Company may refuse to register the transfer of the Shares on the stock transfer records of the Company which constitute a violation of any applicable securities law or this Agreement; and (iii) that the Company may give related instructions to its transfer agent, if any, to stop registration of the transfer of the Shares. 9. In the event that any withholding for tax purposes is required or elected upon vesting of any Shares pursuant to this Agreement and the applicable section of the Plan, and provided further that the withholding of Shares has been approved by the Plan Adminstrator, the Company will withhold in Shares that number of whole shares with a Fair Market Value (as determined under the Plan) which is as nearly equal to but less than the amount of tax required to be withheld, and will remit in cash the Fair Market Value (as determined under the Plan) of Shares so withheld to satisfy such withholding requirements (along with any cash required of Employee pursuant to the applicable section of the Plan). 10. All Shares subject to this Agreement shall have become vested if at all, on or before , on which date this Agreement shall terminate -------- 2 and any Shares subject to this Agreement and unvested at the date shall, without any action on the part of Employee, be transferred to the Company for its use and ownership. 11. In addition to the vesting provisions stated in this Agreement, the Shares subject to this Agreement shall immediately vest upon termination of Employee without Cause (as defined in the Plan) or upon a Change in Control Event (as defined in the Plan). 12. For purposes of this Agreement, Employee shall be considered to be in the employment of the Company as long as Employee remains an employee of either the Company or any successor corporation or a parent or Subsidiary (as defined in the Plan) of the Company or any successor corporation. Any question as to whether and when there has been a termination of such employment, and the cause of such termination, shall be determined by the Board, or its delegate, as appropriate, and its determination shall be final. 13. This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut. 14. All controversies or claims arising out of or relating to this Agreement shall be determined by binding arbitration applying the laws of the State of Connecticut and the rules of the American Arbitration Association applicable to the Commercial Panel, except that there shall only be one (1) arbitrator. Any such arbitration shall be conducted at the Company's offices in Greenwich, Connecticut, or at such other location designated by the Company, before the American Arbitration Association (the "AAA"). Each party to the arbitration shall bear the cost of preparing and presenting its own case. The cost of the arbitration, including the fees and expenses of the arbitrator(s), shall be shared equally by the parties thereto unless the award otherwise provides. 15. The Company does not make any representations or warranties regarding the current or future value of the Shares. 16. Capitalized terms not defined in this Agreement have the meaning assigned to them in the Plan. Witness the signatures of the parties effective the day first written above. ATTEST: VDC COMMUNICATIONS, INC. By - ---------------------------------- ---------------------------------- Frederick A. Moran Chief Executive Officer 3 WITNESS: - ---------------------------------- ---------------------------------- 4 EX-10.59 3 0003.txt EX-10.59 The following form of Non-Qualified Stock Option Agreement was entered into with James B. Dittman, Dr. Hussein Elkholy, and Dr. Leonard Hausman as follows: 2000-OP -------- -------------------- Optionee VDC COMMUNICATIONS, INC. ------------------------ FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT UNDER THE VDC COMMUNICATIONS, INC. 1998 STOCK INCENTIVE PLAN, AS AMENDED This Agreement is made as of October 16, 2000 (the "Grant Date") by and between VDC Communications, Inc., a Delaware corporation (the "Corporation"), and the person named on Schedule A hereto (the "Optionee"). WHEREAS, Optionee is a valuable agent of the Corporation or one of its subsidiaries and the Corporation considers it desirable and in its best interest that Optionee be given an inducement to acquire a proprietary interest in the Corporation and an incentive to advance the interests of the Corporation by granting the Optionee an option to purchase shares of common stock of the Corporation (the "Common Stock"); NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree that as of the Grant Date, the Corporation hereby grants Optionee an option to purchase from it, upon the terms and conditions set forth in the VDC Communications, Inc. 1998 Stock Incentive Plan, as amended from time to time, (the "Plan") (a copy of which is attached hereto) and this Agreement, that number of shares of the authorized and unissued Common Stock of the Corporation as is set forth on Schedule A hereto. 1. Terms of Stock Option. The option to purchase Common --------------------- Stock granted hereby is subject to the terms, conditions, and covenants set forth in the Plan as well as the following: (a) This option shall constitute a Non-Qualified Stock Option which is not intended to qualify under Section 422 of the Internal Revenue Code of 1986, as amended; 1 (b) The per share exercise price for the shares subject to this option shall be the Fair Market Value (as defined in the Plan) of the Common Stock on the Grant Date, which exercise price is set forth on Schedule A hereto; (c) This option shall vest in accordance with the vesting schedule set forth on Schedule A hereto; and (d) No portion of this option may be exercised more than ten (10) years from the Grant Date. 2. Payment of Exercise Price. The option may be ---------------------------- exercised, in part or in whole, only by written request to the Corporation accompanied by payment of the exercise price in full either: (i) in cash for the shares with respect to which it is exercised; (ii) by delivering to the Corporation a notice of exercise with an irrevocable direction to a broker-dealer registered under the Securities Exchange Act of 1934, as amended, to sell a sufficient portion of the shares and deliver the sale proceeds directly to the Corporation to pay the exercise price; (iii) in the discretion of the Plan Administrator, through the delivery to the Corporation of previously-owned shares of Common Stock having an aggregate Fair Market Value equal to the option exercise price of the shares being purchased pursuant to the exercise of the Option; provided, however, that shares of Common Stock delivered in payment of the option price must have been held by the Optionee for at least six (6) months in order to be utilized to pay the option price; (iv) in the discretion of the Plan Administrator, through an election to have shares of Common Stock otherwise issuable to the Optionee withheld to pay the exercise price of such Option; or (v) in the discretion of the Plan Administrator, through any combination of the payment procedures set forth in Subsections (i) - (iv) of this paragraph. 3. Miscellaneous. ------------- (a) This Agreement is binding upon the parties hereto and their respective heirs, personal representatives, successors and permitted assigns. (b) This Agreement will be governed and interpreted in accordance with the laws of the State of Connecticut, and may be executed in more than one counterpart, each of which shall constitute an original document. (c) Other than alterations to, amendments to, suspensions of, or discontinuations of the Plan, as permitted by the Plan, no alterations, amendments, changes or additions to this Agreement will be binding upon either the Corporation or Optionee unless reduced to writing and signed by both parties. (d) All controversies or claims arising out of this Agreement shall be determined by binding arbitration, conducted at the Corporation's offices in Greenwich, Connecticut, or at such other location designated by the Corporation, before the American Arbitration Association. 2 (e) No rule of construction requiring interpretation against the drafting party shall apply to the interpretation of this Agreement. (f) If any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect. (g) The Corporation does not make any representations or warranties regarding the current or future value of the shares underlying the option. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Grant Date. VDC COMMUNICATIONS, INC. By: -------------------------- Frederick A. Moran Chief Executive Officer OPTIONEE: ---------------------------- 3 -------------------- Optionee Schedule A 1. Grant Date: October 16, 2000 2. Number of Shares of Common Stock covered by the Option: 10,000 3. Exercise Price (100% of Fair Market Value of Common Stock on the Grant Date): $0.1875 4. The Option shall vest in accordance with the following schedule: (i) 3,333 shares shall vest on the first anniversary of the Grant Date, provided Optionee continuously serves as a member of the Corporation's Board of Directors from October 16, 2000 through October 15, 2001; (ii) 3,333 shares shall vest on the first anniversary of the Grant Date, provided Optionee continuously serves as a member of the Corporation's Board of Directors from October 16, 2000 through October 15, 2002; and (iii) 3,334 shares shall vest on the first anniversary of the Grant Date, provided Optionee continuously serves as a member of the Corporation's Board of Directors from October 16, 2000 through October 15, 2003. 4 EX-10.60 4 0004.txt EX-10.60 The following form of Incentive Stock Option Agreement was entered into with the following executive officers as follows:
Name Number of Shares Shares Vesting Per Year - ---- ---------------- ----------------------- Edwin B. Read 35,000 7,000 Clayton F. Moran 35,000 7,000
2000-OP -------- --------------- Optionee VDC COMMUNICATIONS, INC. ------------------------ FORM OF INCENTIVE STOCK OPTION AGREEMENT UNDER THE VDC COMMUNICATIONS, INC. 1998 STOCK INCENTIVE PLAN, AS AMENDED This Agreement is made as of October 16, 2000, (the "Grant Date") by and between VDC Communications, Inc., a Delaware corporation (the "Corporation") and (the "Optionee"). ------- WHEREAS, Optionee is an employee of the Corporation or one of its subsidiaries and the Corporation considers it desirable and in its best interest that Optionee be given an inducement to acquire a proprietary interest in the Corporation and an incentive to advance the interests of the Corporation by granting the Optionee an option to purchase shares of common stock of the Corporation (the "Common Stock"); NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree that as of the Grant Date, the Corporation hereby grants Optionee an option to purchase from it, upon the terms and conditions set forth in the VDC Communications, Inc. 1998 Stock Incentive Plan, as amended from time to time, (the "Plan") (a copy of which is attached hereto) and this Agreement, that number of shares of the authorized and unissued Common Stock of the Corporation as is set forth on Schedule A hereto. 1. Terms of Stock Option. The option to purchase Common --------------------- Stock granted herein is subject to the terms, conditions, and covenants set forth in the Plan as well as the following: (a) This option shall constitute an Incentive Stock Option which is intended to qualify under Section 422 of the Internal Revenue Code of 1986, as amended; (b) The per share exercise price for the shares subject to this option shall be the 100% of the Fair Market Value (as defined in the Plan) of the Common Stock on the Grant Date, which exercise price is set forth on Schedule A hereto; (c) This option shall vest in accordance with the vesting schedule set forth on Schedule A hereto; and (d) No portion of this option may be exercised more than ten (10) years from the Grant Date. 2. Payment of Exercise Price. The option may be ---------------------------- exercised, in part or in whole, only by written request to the Corporation accompanied by payment of the exercise price in full either: (i) in cash for the shares with respect to which it is exercised; (ii) by delivering to the Corporation a notice of exercise with an irrevocable direction to a broker-dealer registered under the Securities Exchange Act of 1934, as amended, to sell a sufficient portion of the shares and deliver the sale proceeds directly to the Corporation to pay the exercise price; (iii) in the discretion of the Plan Administrator, through the delivery to the Corporation of previously-owned shares of Common Stock having an aggregate Fair Market Value equal to the option exercise price of the shares being purchased pursuant to the exercise of the Option; provided, however, that shares of Common Stock delivered in payment of the option price must have been held by the Optionee for at least six (6) months in order to be utilized to pay the option price; (iv) in the discretion of the Plan Administrator, through an election to have shares of Common Stock otherwise issuable to the Optionee withheld to pay the exercise price of such Option; or (v) in the discretion of the Plan Administrator, through any combination of the payment procedures set forth in Subsections (i) - (iv) of this paragraph. 3. Miscellaneous. ------------- (a) This Agreement and the options represented hereby may not be assigned or transferred in any manner except by will or by the laws of descent and distribution or pursuant to a domestic relations order. (b) This Agreement will be governed and interpreted in accordance with the laws of the State of Connecticut and federal law (to the extent it preempts the laws of the State of Connecticut), and may be executed in more 2 than one counterpart, each of which shall constitute an original document. (c) Other than alterations to, amendments to, suspensions of, or discontinuations of the Plan, as permitted by the Plan, no alterations, amendments, changes or additions to this Agreement will be binding upon either the Corporation or Optionee unless reduced to writing and signed by both parties. (d) All controversies or claims arising out of this Agreement shall be determined by binding arbitration, conducted at the Corporation's offices in Greenwich, Connecticut, or at such other location designated by the Corporation, before the American Arbitration Association. (e) No rule of construction requiring interpretation against the drafting party shall apply to the interpretation of this Agreement. (f) If any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect. (g) The Corporation does not make any representations or warranties regarding the current or future value of the shares underlying the option. In witness whereof, the parties have executed this Agreement as of the Grant Date. CORPORATION: VDC COMMUNICATIONS, INC. By: ---------------------------- Frederick A. Moran Chief Executive Officer OPTIONEE: ------------------------------- 3 ---------------- Optionee Schedule A 1. Grant Date: October 16, 2000 2. Number of Shares of Common Stock covered by the Option: ------- 3. Exercise Price (100% of Fair Market Value of Common Stock on the Grant Date): $0.1875 4. The Option shall vest in accordance with the following schedule: (i) shares shall vest on the first anniversary of the ------- Grant Date, provided Optionee remains continuously employed by the Corporation or any of its Subsidiaries (as defined in the Plan) from October 16, 2000 through October 15, 2001; (ii) shares shall vest on the second anniversary of the ------- Grant Date, provided Optionee remains continuously employed by the Corporation or any of its Subsidiaries (as defined in the Plan) from October 16, 2000 through October 15, 2002; (iii) shares shall vest on the third anniversary of the ------- Grant Date, provided Optionee remains continuously employed by the Corporation or any of its Subsidiaries (as defined in the Plan) from October 16, 2000 through October 15, 2003; (iv) shares shall vest on the fourth anniversary of the ------- Grant Date, provided Optionee remains continuously employed by the Corporation or any of its Subsidiaries (as defined in the Plan) from October 16, 2000 through October 15, 2004; and (v) shares shall vest on the fifth anniversary of the ------- Grant Date, provided Optionee remains continuously employed by the Corporation or any of its Subsidiaries (as defined in the Plan) from October 16, 2000 through October 15, 2005. 4 EX-10.61 5 0005.txt EX-10.61 The following form of Amendment to Stock Option Agreements was entered into with the following executive officers and directors as follows:
Name Price Per Share - ---- --------------- Frederick A. Moran $0.20625 Clayton F. Moran $0.1875 Edwin B. Read $0.1875 Dr. Hussein Elkholy $0.1875 James B. Dittman $0.1875 Dr. Leonard Hausman $0.1875
FORM OF AMENDMENT TO STOCK OPTION AGREEMENTS UNDER THE VDC COMMUNICATIONS, INC. 1998 STOCK INCENTIVE PLAN, AS AMENDED This Amendment (the "Amendment") is made as of October 16, 2000, (the "Amendment Date") by and between VDC Communications, Inc., a Delaware corporation (the "Corporation") and Frederick A. Moran (the "Optionee"). WHEREAS, the parties have entered into option agreements representing stock options granted to the Optionee under the VDC Communications, Inc. 1998 Stock Incentive Plan, as amended from time to time (the "Plan"); and WHEREAS, the parties wish to amend certain of these option agreements. NOW, THEREFORE, the parties hereto, intending to be legally bound, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as follows: 1. The per share exercise price set forth in Corporation stock option agreements (collectively the "Amended Agreements") is ------- hereby amended to be $ . ----------- 2. Except as otherwise set forth herein, the terms of the Amended Agreements shall remain in full force and effect. 3. This Amendment may be executed in two or more counterparts and delivered via facsimile, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. Page 1 of 2 IN WITNESS WHEREOF, the parties have signed this Amendment as of the date first written above. CORPORATION: VDC COMMUNICATIONS, INC. By: ----------------------------------- Frederick A. Moran Chief Executive Officer OPTIONEE: -------------------------------------- Page 2 of 2 EX-10.62 6 0006.txt EX-10.62 2000-OP41 Frederick A. Moran Optionee VDC COMMUNICATIONS, INC. ------------------------ INCENTIVE STOCK OPTION AGREEMENT UNDER THE VDC COMMUNICATIONS, INC. 1998 STOCK INCENTIVE PLAN, AS AMENDED This Agreement is made as of October 16, 2000, (the "Grant Date") by and between VDC Communications, Inc., a Delaware corporation (the "Corporation") and Frederick A. Moran (the "Optionee"). WHEREAS, Optionee is an employee of the Corporation or one of its subsidiaries and the Corporation considers it desirable and in its best interest that Optionee be given an inducement to acquire a proprietary interest in the Corporation and an incentive to advance the interests of the Corporation by granting the Optionee an option to purchase shares of common stock of the Corporation (the "Common Stock"); NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree that as of the Grant Date, the Corporation hereby grants Optionee an option to purchase from it, upon the terms and conditions set forth in the VDC Communications, Inc. 1998 Stock Incentive Plan, as amended from time to time, (the "Plan") (a copy of which is attached hereto) and this Agreement, that number of shares of the authorized and unissued Common Stock of the Corporation as is set forth on Schedule A hereto. 1. Terms of Stock Option. The option to purchase Common --------------------- Stock granted herein is subject to the terms, conditions, and covenants set forth in the Plan as well as the following: (a) This option shall constitute an Incentive Stock Option which is intended to qualify under Section 422 of the Internal Revenue Code of 1986, as amended; (b) The per share exercise price for the shares subject to this option shall be 110% of the Fair Market Value (as defined in the Plan) of the Common Stock on the Grant Date, which exercise price is set forth on Schedule A hereto; 1 (c) This option shall vest in accordance with the vesting schedule set forth on Schedule A hereto; and (d) No portion of this option may be exercised more than five (5) years from the Grant Date. 2. Payment of Exercise Price. The option may be ---------------------------- exercised, in part or in whole, only by written request to the Corporation accompanied by payment of the exercise price in full either: (i) in cash for the shares with respect to which it is exercised; (ii) by delivering to the Corporation a notice of exercise with an irrevocable direction to a broker-dealer registered under the Securities Exchange Act of 1934, as amended, to sell a sufficient portion of the shares and deliver the sale proceeds directly to the Corporation to pay the exercise price; (iii) in the discretion of the Plan Administrator, through the delivery to the Corporation of previously-owned shares of Common Stock having an aggregate Fair Market Value equal to the option exercise price of the shares being purchased pursuant to the exercise of the Option; provided, however, that shares of Common Stock delivered in payment of the option price must have been held by the Optionee for at least six (6) months in order to be utilized to pay the option price; (iv) in the discretion of the Plan Administrator, through an election to have shares of Common Stock otherwise issuable to the Optionee withheld to pay the exercise price of such Option; or (v) in the discretion of the Plan Administrator, through any combination of the payment procedures set forth in Subsections (i) - (iv) of this paragraph. 3. Miscellaneous. ------------- (a) This Agreement and the options represented hereby may not be assigned or transferred in any manner except by will or by the laws of descent and distribution or pursuant to a domestic relations order. (b) This Agreement will be governed and interpreted in accordance with the laws of the State of Connecticut and federal law (to the extent it preempts the laws of the State of Connecticut), and may be executed in more than one counterpart, each of which shall constitute an original document. (c) Other than alterations to, amendments to, suspensions of, or discontinuations of the Plan, as permitted by the Plan, no alterations, amendments, changes or additions to this Agreement will be binding upon either the Corporation or Optionee unless reduced to writing and signed by both parties. 2 (d) All controversies or claims arising out of this Agreement shall be determined by binding arbitration, conducted at the Corporation's offices in Greenwich, Connecticut, or at such other location designated by the Corporation, before the American Arbitration Association. (e) No rule of construction requiring interpretation against the drafting party shall apply to the interpretation of this Agreement. (f) If any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect. (g) The Corporation does not make any representations or warranties regarding the current or future value of the shares underlying the option. In witness whereof, the parties have executed this Agreement as of the Grant Date. VDC COMMUNICATIONS, INC. By:/s/ Frederick A. Moran -------------------------------- Frederick A. Moran Chief Executive Officer OPTIONEE /s/ Frederick A. Moran ----------------------------------- Frederick A. Moran 3 Frederick A. Moran Optionee Schedule A 1. Grant Date: October 16, 2000 2. Number of Shares of Common Stock covered by the Option: 75,000 3. Exercise Price (110% of Fair Market Value of Common Stock on the Grant Date): $.20625 4. The Option shall vest in accordance with the following schedule: (i) 15,000 shares shall vest on the first anniversary of the Grant Date, provided Optionee remains continuously employed by the Corporation or any of its Subsidiaries (as defined in the Plan) from October 16, 2000 through October 15, 2001; (ii) 15,000 shares shall vest on the second anniversary of the Grant Date, provided Optionee remains continuously employed by the Corporation or any of its Subsidiaries (as defined in the Plan) from October 16, 2000 through October 15, 2002; (iii) 15,000 shares shall vest on the third anniversary of the Grant Date, provided Optionee remains continuously employed by the Corporation or any of its Subsidiaries (as defined in the Plan) from October 16, 2000 through October 15, 2003; (iv) 15,000 shares shall vest on the fourth anniversary of the Grant Date, provided Optionee remains continuously employed by the Corporation or any of its Subsidiaries (as defined in the Plan) from October 16, 2000 through October 15, 2004; and (v) 15,000 shares shall vest on the fifth anniversary of the Grant Date, provided Optionee remains continuously employed by the Corporation or any of its Subsidiaries (as defined in the Plan) from October 16, 2000 through October 15, 2005. 4 EX-10.63 7 0007.txt EX-10.63 CONTRACT OF SALE ---------------- In consideration of the forgiveness of TWO MILLION DOLLARS and no/100 ($2,000,000.00) in indebtedness owed by VDC TELECOMMUNICATIONS, INC. ("Seller") to VDC COMMUNICATIONS, INC. ("Buyer"), Seller hereby sells, upon the terms and conditions in this contract, to Buyer the equipment (the "Equipment") described as follows: Front End: DMS 300/250 SNSE with BRISC60 processor and SLM III Software: GWCARR004 (release GWY04) Billing Format: CDR15/UCS07 DTC's: 13 PDTC's: 10 LIU's: 10 EIU's: 2 Redundant SS7 "A" Links on ICG via TNS Single MTD - 9 Track Tape Drive 2 - 400 VA Invertors BDFB - Distribution Frame 8 Hour Battery backup system Overhead cable rack system Redundant Air-conditioning system Nortel D4 Channel Bank DS3 Multiplexers (CAC, RAD, Adtran) DSX Cross Connect panels Maintenance terminals and printers. Coherent Echo Cancellation (E1 capable - 90 Channels) Meridian 2 Cabinet PBX Upon execution of this contract, Buyer shall bear all risk of loss or injury to the Equipment. Buyer is purchasing the Equipment in an "as is" condition and where presently located. This is a final sale. The parties hereby agree to all of the above terms which constitute the entire agreement and supersedes any prior written or oral agreements between the parties. [THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK] 1 In witness whereof, the parties have signed this contract on October 30, 2000. WITNESS: BUYER: /s/ Chris Peterson VDC COMMUNICATIONS, INC. - ------------------------------------ Signature By:/s/ Clayton F. Moran --------------------------------- Chris Peterson Clayton F. Moran - ------------------------------------ Chief Financial Officer Print Name WITNESS SELLER: /s/ Joan Moran VDC TELECOMMUNICATIONS, INC. - ------------------------------------ Signature By:/s/ Frederick A. Moran --------------------------------- Joan Moran Frederick A. Moran - ------------------------------------ President Print Name 2 EX-10.64 8 0008.txt EX-10.64 The following Form of Promissory Note was executed by Rare Telephony, Inc. in the following amounts on the following dates to document loans from VDC Communications, Inc. to Rare Telephony, Inc.:
Date Amount - ---- ------ September 14, 2000 $50,000 September 18, 2000 $50,000 September 21, 2000 $50,000 September 25, 2000 $25,000 September 26, 2000 $25,000 September 27, 2000 $50,000 October 10, 2000 $10,000 October 17, 2000 $85,000 October 24, 2000 $40,000 October 25, 2000 $40,000 November 2, 2000 $30,000 November 7, 2000 $15,000 November 10, 2000 $35,000
FORM OF PROMISSORY NOTE ----------------------- $ ------------- , 2000 ---------------- Greenwich, Connecticut FOR VALUE RECEIVED, the undersigned RARE TELEPHONY, INC., a Delaware corporation (f/k/a Voice & Data Communications (Latin America), Inc.) ("Maker"), promises to pay to the order of VDC Communications, Inc., a Delaware corporation ("Holder"), which term shall include any subsequent holder of this Note, at 75 Holly Hill Lane, Greenwich, CT 06830 (or at such other place as Holder shall designate in writing) in lawful money of the United States of America, the aggregate principal sum of Thousand Dollars ($ ), with interest thereon --------- --------- at the rate (the "Interest Rate") described below. 1 1. Interest Rate. The Interest Rate shall be eight percent (8%) ------------- per annum. 2. Outstanding Principal Balance. All references to the "Outstanding ----------------------------- Principal Balance" shall mean the amount of Thousand ------------ Dollars ($ ), less any principal repaid. --------- 3. Payments. This Note shall be payable in full on , -------- --------------- 2001 (the "Maturity Date") when the entire Outstanding Principal Balance, and any accrued but unpaid interest, shall be due and payable. 4. Application of Payments. All payments on this Note shall be ------------------------- applied first to the payment of accrued and unpaid interest, and then to the reduction of the Outstanding Principal Balance. 5. Prepayment Right. Maker shall have the right to prepay at any ------------------ time, in whole or in part, the Outstanding Principal Balance of this Note, without premium or penalty. 6. Accelerated Maturity. Notwithstanding anything in this Note to the -------------------- contrary and irrespective of the Maturity Date, the entire Outstanding Principal Balance and accrued interest shall become immediately due and payable upon the earliest to occur of the following (the "Accelerated Maturity Date"): (a) the sale of all or substantially all of the assets of the Maker or the common stock of the Maker to a third party; or (b) the issuance of the securities of Maker on the public market. 7. Modifications. From time to time, without affecting the obligation ------------- of Maker to pay the Outstanding Principal Balance or to observe the covenants of Maker contained herein, and without giving notice to or obtaining the consent of Maker, Holder may, at the option of Holder, extend the time for payment of the Outstanding Principal Balance or any part thereof, reduce the payments hereunder, release any person liable hereunder, accept a renewal or extension of this Note, join in any extension or subordination agreement, release any security given herefor, take or release security, or agree in writing with Maker to modify the Interest Rate or any other provision of this Note. 8. Events of Default. Time is of the essence hereof. Upon the ------------------- occurrence of any of the following events (the "Events of Default"), payment of the entire Outstanding Principal Balance and accrued interest of this Note shall, at the option of the Holder, be accelerated and shall be immediately due and payable without notice or demand: (a) Failure of Maker to pay the Outstanding Principal Balance and accrued interest in full on the Maturity Date or the Accelerated Maturity Date; or (b) All or the majority of the value of the assets of Maker is seized or levied upon by writ of attachment, garnishment, 2 execution or otherwise, and such seizure or levy is not released within thirty (30) calendar days thereafter; or (c) Maker executes a general assignment for the benefit of its creditors, convenes any meeting of its creditors, becomes insolvent, admits in writings its insolvency or inability to pay its debts, or is unable to pay or is generally not paying its debts as they become due; or (d) A receiver, trustee, custodian or agent is appointed to take possession of all or any substantial portion of Maker's assets; or (e) Any case or proceeding is voluntarily commenced by Maker under any provision of the federal Bankruptcy Code or any other federal or state law relating to debtor rehabilitation, insolvency, bankruptcy, liquidation or reorganization, or any such case or proceeding is involuntarily commenced against Maker and not dismissed within thirty (30) calendar days thereafter; or (f) Any representation made by Maker in this Note or in any of the other documents delivered in connection therewith, shall have been untrue or incorrect in any material respect when made. 9. Default Rate. In the event that Maker fails to pay the Outstanding ------------ Principal Balance and all accrued interest in full on the Maturity Date or the Accelerated Maturity Date, the amount past due (including any acceleration of the Outstanding Principal Balance), and unpaid shall bear interest at an annual rate equal to the lesser of (i) fifteen percent (15%), or (ii) the maximum amount permitted by law (the "Default Rate"), computed from the date on which said amount was due and payable until paid. The charging or collecting of interest at the Default Rate shall not limit any of Holder's other rights or remedies under this Note. 10. Governing Law. Maker, and each endorser and cosigner of this Note, ------------- acknowledges and agrees that this Note is made and is intended to be paid and performed in the State of Connecticut and the provisions hereof will be construed in accordance with the laws of the State of Connecticut and, to the extent that federal law may preempt the applicability of state laws, federal law. Maker, and each endorser and cosigner of this Note further agree that upon the occurrence of an Event of Default, this Note may be enforced in any court of competent jurisdiction in the State of Connecticut, and they do hereby submit to the jurisdiction of such courts regardless of their residence. 11. Remedies Cumulative: Waiver. The remedies of Holder as provided ----------------------------- herein shall be cumulative and concurrent, and may be pursued singularly, successively or together, in the sole discretion of Holder, and may be exercised as often as occasion therefor shall arise. No act of omission or commission of Holder, including specifically any failure to exercise any right, remedy or recourse, shall be deemed to be a waiver or release of the same; such waiver or release to be affected only through a written document executed by Holder and then only to the extent specifically recited therein. Without limiting the generality of 3 the preceding sentence, acceptance by Holder of any payment with knowledge of the occurrence of an Event of Default by Maker shall not be deemed a waiver of such Event of Default, and acceptance by Holder of any payment in an amount less than the amount then due hereunder shall be an acceptance on account only and shall not in any way affect the existence of an Event of Default hereunder. A waiver or release with reference to any one event shall not be construed as continuing, as a bar to, or as a waiver or release of, any subsequent right, remedy or recourse as to a subsequent event. 12. No Usury Intended. All agreements between Maker and Holder are ------------------ expressly limited so that in no contingency or event whatsoever, whether by reason of: error of fact or law; payment, prepayment or advancement of the proceeds hereof; acceleration of maturity of the Outstanding Principal Balance, or otherwise, shall the amount paid or agreed to be paid to Holder hereof for the use, forbearance or retention of the money to be advanced hereunder, including any charges collected or made in connection with the indebtedness evidenced by this Note which may be treated as interest under applicable law, if any, exceed the maximum legal limit (if any such limit is applicable) under United States federal law or state law (to the extent not preempted by federal law, if any), now or hereafter governing the interest payable in connection with such agreements. If, from any circumstances whatsoever, fulfillment of any provision hereof at the time performance of such provision shall be due shall involve transcending the limit of validity (if any) prescribed by law which a court of competent jurisdiction may deem applicable hereto, then ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity, and if from any circumstances, Holder shall ever receive as interest an amount which would exceed the maximum legal limit (if any such limit is applicable), such amount which would be excessive interest shall be applied to the reduction of the Outstanding Principal Balance due hereunder and not to the payment of interest or, if necessary, rebated to Maker. This provision shall control every other provision of all agreements between Maker and Holder. 13. Guaranty. Not applicable. -------- 14. Purpose of Loan. Maker certifies that the loan evidenced by this --------------- Note is obtained for business or commercial purposes and that the proceeds thereof shall not be used for personal, family, household, or agricultural purposes. 15. Miscellaneous Provisions. ------------------------ (a) Maker, and each endorser and cosigner of this Note expressly grants to Holder the right to release or to agree not to sue any other person, or to suspend the right to enforce this Note against such other person or to otherwise discharge such person; and Maker, and each endorser and cosigner agrees that the exercise of such rights by Holder will have no effect on this liability of any other person, primarily or secondarily liable hereunder. Maker, and each endorser and cosigner of 4 this Note waives, to the fullest extent permitted by law, demand for payment, presentment for payment, protest, notice of protest, notice of dishonor, notice of nonpayment, notice of acceleration of maturity, diligence in taking any action to collect sums owing hereunder, any duty or obligation of Holder to effect, protect, perfect, retain or enforce any security for the payment of this Note or to proceed against any collateral before otherwise enforcing this Note, and the right to plead as a defense to the payment hereof any statute of limitations. (b) This Note and each payment of principal and interest hereunder shall be paid when due without deduction or setoff of any kind or nature whatsoever. (c) Maker agrees to reimburse Holder for all costs, including, without limitation, reasonable attorneys' fees (including an allocable portion of in-house counsel fees), incurred to collect this Note if this Note is not paid when due, including, but not limited to, attorneys' fees (including an allocable portion of in-house counsel fees) incurred in connection with any bankruptcy proceedings instituted by or against Maker (including relief from stay litigation). (d) If any provision hereof is for any reason and to any extent, invalid or unenforceable, then neither the remainder of the document in which such provision is contained, nor the application of the provision to other persons, entities or circumstances shall be affected thereby, but instead shall be enforceable to the maximum extent permitted by law. (e) This Note shall be a joint and several obligation of Maker, and of all endorsers and cosigners hereof and shall be binding upon them and their respective heirs, personal representatives, successors and assigns. (f) This Note may not be modified or amended orally, but only by a modification or amendment in writing signed by Holder and Maker. (g) When the context and construction so require, all words used in the singular herein shall be deemed to have been used in the plural and the masculine shall include the feminine and neuter and vice versa. The word "person" as used herein shall include any individual, company, firm, association, partnership, corporation, trust or other legal entity of any kind whatsoever. (h) The headings of the paragraphs and sections of this Note are for convenience or reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof. (i) In the event that at any time any payment received by Holder hereunder shall be deemed by final order of a court of competent jurisdiction to have been a voidable preference or fraudulent conveyance under the bankruptcy or insolvency laws 5 of the United States, or shall otherwise be deemed to be due to any party other than Holder, then, in any such event, the obligation to make such payment shall survive any cancellation of this Note and/or return thereof to Maker and shall not be discharged or satisfied by any prior payment thereof and/or cancellation of this Note, but shall remain a valid and binding obligation enforceable in accordance with the terms and provisions hereof, and the amount of such payment shall bear interest at the Default Rate from the date of such final order until repaid hereunder. (j) Maker understands and agrees that Holder has no obligation to loan additional funds to Maker or its subsidiaries and that any future loans made to Maker by Holder, if any, shall be in the sole discretion of Holder. IN WITNESS WHEREOF Maker has executed this Promissory Note as of the day and year first above written. "Maker" RARE TELEPHONY, INC. (f/k/a Voice & Data Communications (Latin America), Inc.) By: -------------------------------------- Its: ------------------------------------- 6 EX-27 9 0009.txt FDS --
5 This schedule contains Summary Financial information extracted from the financial statements for the three months ended September 30, 2000 and is qualified in its entirety by reference to such statements. 1000 3-MOS JUN-30-2001 SEP-30-2000 123 0 958 504 0 795 5,101 1,526 8,150 3,991 939 0 0 3 3,487 8,150 2,022 2,022 0 2,373 577 0 18 (2,559) 0 (2,559) 0 0 0 (2,559) (0.10) (0.10)
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