-----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, GjLoJcw2M9zVml62CmF5r3ZpizDgE4HdIMfgi4cfhNUpIzJNtnsOtzNF34q77NvK TzpNM8jH5jgdopXOPQagwg== 0000950144-03-009911.txt : 20030814 0000950144-03-009911.hdr.sgml : 20030814 20030813213420 ACCESSION NUMBER: 0000950144-03-009911 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 20030630 FILED AS OF DATE: 20030814 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TERREMARK WORLDWIDE INC CENTRAL INDEX KEY: 0000912890 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 521989122 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-12475 FILM NUMBER: 03843206 BUSINESS ADDRESS: STREET 1: 2601 SOUTH BAYSHORE DRIVE CITY: MIAMI STATE: FL ZIP: 33133 BUSINESS PHONE: 2123199160 MAIL ADDRESS: STREET 1: 2601 SOUTH BAYSHORE DRIVE CITY: MIAMI STATE: FL ZIP: 33133 FORMER COMPANY: FORMER CONFORMED NAME: AMTEC INC DATE OF NAME CHANGE: 19970715 FORMER COMPANY: FORMER CONFORMED NAME: AVIC GROUP INTERNATIONAL INC/ DATE OF NAME CHANGE: 19950323 FORMER COMPANY: FORMER CONFORMED NAME: YAAK RIVER MINES LTD DATE OF NAME CHANGE: 19931001 10-Q 1 g84461e10vq.txt TERREMARK WORLDWIDE, INC. ================================================================================ 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 quarterly period ended June 30, 2003 [ ] Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from __________ to __________ Commission file number 0-22520 TERREMARK WORLDWIDE, INC - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Its Charter) Delaware 52-1981922 - ------------------------------- ---------------- (State or Other Jurisdiction of (I.R.S. Employer Incorporation Identification No.) or Organization) 2601 S. Bayshore Drive, Miami, Florida 33133 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices, Including Zip Code) Registrant's telephone number, including area code: (305) 856-3200 ---------------------- Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ] Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b of the Exchange Act. Yes [ ] No [ X ] The registrant had 306,473,699 shares of common stock, $0.001 par value, outstanding as of July 30, 2003. ================================================================================ TABLE OF CONTENTS PART I FINANCIAL INFORMATION ITEM 1 Financial Statements Condensed Consolidated Balance Sheets as of June 30, 2003 (unaudited) and March 31, 2003 Condensed Consolidated Statements of Operations for the Three Months ended June 30, 2003 and 2002 (unaudited) Condensed Consolidated Statement of Changes in Stockholder's Deficit for the Three Months Ended June 30, 2003 (unaudited) Condensed Consolidated Statements of Cash Flows for the Three Months ended June 30, 2003 and 2002 (unaudited) Notes to Condensed Consolidated Financial Statements (unaudited) ITEM 2 Management's Discussion and Analysis of Financial Condition and Results of Operations ITEM 3 Quantitative and Qualitative Disclosures About Market Risk ITEM 4 Controls and Procedures PART II OTHER INFORMATION ITEM 6 Exhibits and Reports on Form 8-K SIGNATURES 1 Item 1. Financial Statements Terremark Worldwide, Inc. and Subsidiaries Condensed Consolidated Financial Statements June 30, 2003 Terremark Worldwide, Inc. and Subsidiaries Condensed Consolidated Balance Sheets - --------------------------------------------------------------------------------
June 30, March 31, 2003 2003 ------------- ------------- (unaudited) Assets Current assets: Cash and cash equivalents $ 5,361,770 $ 1,408,190 Accounts receivable, net of allowance for doubtful accounts of $128,211 and $120,340 686,856 494,736 Contracts receivable 20,370 29,204 ------------- ------------- Total current assets 6,068,996 1,932,130 Investment in unconsolidated entities, net 826,005 827,667 Restricted cash 777,965 768,905 Property and equipment, net 53,409,689 54,482,964 Other assets 2,838,810 1,589,977 Goodwill 9,999,870 9,999,870 ------------- ------------- Total assets $ 73,921,335 $ 69,601,513 ============= ============= Liabilities and Stockholders' Deficit Current liabilities: Current portion of notes payable (includes $3,853,564 and $138,000 due to related parties) $ 9,341,672 $ 1,464,963 Construction payables 528,270 22,012,162 Accounts payable and accrued expenses 5,948,182 8,434,373 Current portion of capital lease obligations 2,203,427 2,477,467 Interest payable 807,967 4,492,805 Net liabilities of discontinued operations 1,185,927 1,199,531 Convertible debt -- 900,000 ------------- ------------- Total current liabilities 20,015,445 40,981,301 Notes payable, less current portion (includes $32,816,149 and $4,100,000 due to related parties) 32,915,166 56,174,938 Convertible debt, with a face value of 38,880,000 and $14,005,000 (includes $3,650,000 and $3,450,000 due to related parties) 29,832,381 14,005,000 Deferred rent 2,885,534 2,610,623 Capital lease obligations, less current portion 732,646 762,470 Deferred revenue 974,064 971,150 ------------- ------------- Total liabilities 87,355,236 115,505,482 ------------- ------------- Commitments and contingencies Series H redeemable convertible preferred stock: $.001 par value, 294 shares issued and outstanding 564,226 556,729 ------------- ------------- Series G convertible preferred stock: $.001 par value, 20 shares issued and outstanding 1 1 Common stock: $.001 par value, 400,000,000 shares authorized; 306,462,365 and 256,276,864 shares issued 306,462 256,277 Paid in capital 198,319,375 169,204,208 Accumulated deficit (211,394,325) (214,324,140) Common stock warrants 2,224,985 1,857,581 Common stock options 1,545,375 1,545,375 Note receivable - related party (Note 5) (5,000,000) (5,000,000) ------------- ------------- Total stockholders' deficit (13,998,127) (46,460,698) ------------- ------------- Total liabilities and stockholders' deficit $ 73,921,335 $ 69,601,513 ------------- -------------
The accompanying notes are an integral part of these consolidated financial statements. 2 Terremark Worldwide, Inc. and Subsidiaries Condensed Consolidated Statements of Operations - --------------------------------------------------------------------------------
For the three months ended June 30, ------------------------------------- 2003 2002 ------------- ------------- (Unaudited) Revenues Data center $ 3,010,615 $ 2,059,128 Data center - contract termination fee 291,537 1,090,638 Development, commission and construction fees 41,081 17,604 Management fees 64,269 82,545 Construction contracts 33,695 1,932,969 ------------- ------------- Operating revenues 3,441,197 5,182,884 ------------- ------------- Expenses Data center operations, excluding depreciation 2,556,550 3,094,680 Construction contract expenses, excluding depreciation 46,456 1,833,509 General and administrative 2,645,782 3,285,921 Sales and marketing 772,318 769,606 Depreciation and amortization 1,184,029 1,231,244 ------------- ------------- Operating expenses 7,205,135 10,214,960 ------------- ------------- Loss from operations (3,763,938) (5,032,076) ------------- ------------- Other income (expense) Gain on debt restructuring 8,475,000 -- Interest expense (1,832,070) (3,015,627) Dividend on preferred stock (7,497) (7,497) Interest income 23,255 28,865 Other 35,065 53,916 ------------- ------------- Total other income (expenses) 6,693,753 (2,940,343) ------------- ------------- Income (loss) before income taxes 2,929,815 (7,972,419) Income taxes -- -- ------------- ------------- Net income (loss) $ 2,929,815 $ (7,972,419) ------------- ------------- Basic and diluted net income (loss) per common share: $ 0.01 $ (0.04) ------------- ------------- Weighted average common shares outstanding 289,886,832 204,524,008 ------------- -------------
The accompanying notes are an integral part of these consolidated financial statements. Terremark Worldwide, Inc. and Subsidiaries Condensed Consolidated Statement of Changes in Stockholders' Deficit - --------------------------------------------------------------------------------
Stockholders' Deficit (Unaudited) ---------------------------------------------------------------------------------------------------- Common Stock Par Value $.001 ----------------- Additional Common Common Preferred Issued Paid-in Stock Stock Note Receivable Retained Stock Shares Amount Capital Warrants Options Related Party Deficit --------- ---------- --------- ------------- ----------- ---------- ------------- ------------- Balance at March 31, 2003 1 256,276,864 $256,277 $169,204,208 $1,857,581 $1,545,375 $(5,000,000) $(214,324,140) Conversion of debt -- 50,133,334 50,133 23,449,867 -- -- -- -- Exercise of stock options -- 42,667 43 21,777 -- -- -- -- Warrants issued -- -- -- (177,750) 397,950 -- -- -- Exercise of warrants -- 9,500 9 8,521 (3,971) -- -- -- Warrants expired -- -- -- 26,575 (26,575) -- -- -- Beneficial conversion feature on issuance of convertible debentures -- -- -- 9,500,000 -- -- -- -- Subscription receivable (Note 7) -- -- -- (3,713,823) -- -- -- -- Net income -- -- -- -- -- -- -- 2,929,815 ----- ----------- --------- ------------ ---------- ---------- ----------- ------------- Balance at June 30, 2003 1 306,462,365 $ 306,462 $198,319,375 $2,224,985 $1,545,375 $(5,000,000) $(211,394,325) ===== =========== ========= ============ ========== ========== =========== =============
The accompanying notes are an integral part of these consolidated financial statements. 3 Terremark Worldwide, Inc. and Subsidiaries Condensed Consolidated Statements of Cash Flows - --------------------------------------------------------------------------------
For the three months ended June 30, (Unaudited) ----------------------------------- 2003 2002 ------------ ------------ Cash flows from operating activities: Net income (loss) $ 2,929,815 $ (7,972,419) Adjustments to reconcile net income (loss) to net cash used in operating activities Depreciation and amortization 1,184,029 1,240,501 Amortization of beneficial conversion feature on issuance of convertible debentures 452,381 -- Amortization of loan costs 33,705 232,272 Provision for bad debt 7,871 -- Dividend on preferred stock 7,497 7,497 Gain on debt restructuring (8,475,000) -- (Increase) decrease in: Accounts receivable (199,991) 597,951 Contracts receivable 8,834 848,415 Other assets (1,089,264) (512,618) Increase (decrease) in: Accounts payable and accrued expenses (2,486,191) 59,105 Interest payable (2,687,181) 698,371 Deferred revenue 2,914 12,770 Net assets/liabilities of discontinued operations (13,604) 85,552 Deferred rent 274,911 292,813 ------------ ------------ Net cash used in operating activities (10,049,274) (4,409,790) ------------ ------------ Cash flows from investing activities: Restricted cash (9,060) (11,332) Purchase of property and equipment (83,828) (650,226) Investment in unconsolidated entities 1,662 (228,182) ------------ ------------ Net cash used in investing activities (91,226) (889,740) ------------ ------------ Cash flows from financing activities: (Payments) borrowings of construction payables 118,451 (2,133,154) New borrowings 750,000 2,181,221 Payments on loans (1,290,723) (436,870) Issuance of convertible debt 15,836,177 -- Payments on convertible debt (1,025,000) Payments under capital lease obligations (303,864) (254,594) Exercise of stock options and warrants 9,039 -- Sale of common stock and warrants -- 7,591,000 ------------ ------------ Net cash provided by financing activities 14,094,080 6,947,603 ------------ ------------ Net increase in cash and cash equivalents 3,953,580 1,648,073 Cash and cash equivalents at beginning of period 1,408,190 283,078 ------------ ------------ Cash and cash equivalents at end of period $ 5,361,770 $ 1,931,151 ============ ============
The accompanying notes are an integral part of these consolidated financial statements. 4 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements June 30, 2003 - -------------------------------------------------------------------------------- 1. Business and organization Terremark Worldwide, Inc. (together with its subsidiaries, the "Company") operates facilities at strategic locations around the world from which the Company assists users of the Internet and large communications networks in communicating with other users and networks. The Company's primary facility is the NAP of the Americas, a carrier-neutral Tier-1 network access point ("the NAP") in Miami, Florida. The NAP provides exchange point, colocation and managed services to carriers, Internet service providers, network service providers, government entities, multinational enterprises and other end users. The Company's strategy is to leverage its concentration of connectivity and carrier-neutral status to sell services to customers within and outside of the Company's TerreNAP Data Centers. On April 28, 2000, the predecessor to the Company, Terremark Holdings, Inc. (THI) merged with and into AmTec, Inc., a publicly traded international telecommunications and services company. For accounting purposes the merger was treated as a reverse acquisition with the Company being the acquirer. As a result, historical information is that of THI. Prior to the merger with AmTec, the Company was engaged in the development, sales, leasing, management and financing of retail, high-rise office buildings, mixed-use projects, condominiums, hotels and government-assisted housing. The Company was also involved in a number of ancillary businesses that complemented its development operations. Specifically, the Company engaged in offering financial services, property management, construction management, condominium hotel management, residential and commercial leasing brokerage, and advisory services. By March 31, 2002, the Company exited non-core real estate activities, real estate development, property management, financing and the ancillary businesses that complimented these real-estate development operations. The Company's remaining real estate activities include technology construction work and management of the properties where the NAP of the Americas is located. 2. Liquidity The accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of assets and liabilities and commitments in the normal course of business. From the time of the merger through June 30, 2003, the Company has incurred net operating losses of approximately $199.7 million, including approximately $82.6 million of losses related to discontinued operations. The Company's cash flows from operations for the three months ended June 30, 2003 and 2002 were negative and the working capital deficit was approximately $14.0 million and $39.0 million as of June 30, 2003 and March 31, 2003, respectively. Due to recurring losses from operations and the lack of committed sources of additional debt or equity to support working capital deficits, substantial doubt exists about the Company's ability to continue as a going concern. Historically, the Company has met its liquidity needs primarily through obtaining additional debt financing and the issuance of equity interests. Some of the debt financing was either provided by or guaranteed by Manuel D. Medina, the Company's Chief Executive Officer and Chairman of the 5 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- Board of Directors. In prior periods, the Company also shut down or disposed of non-core operations and implemented expense reductions to reduce the Company's liquidity needs. Based on customer contracts signed as of July 31, 2003, the Company's monthly cash deficit from operations is approximately $1.2 million. In order to eliminate this monthly cash deficit from operations, the new monthly revenues required range from $1.8 million to $2.8 million. This range of new revenue depends on the mix of the services sold and their corresponding margin. The Company's required revenues are based on existing contracts, including those recently announced with the U.S. Government and enterprises, and expected future contracts from potential customers currently in the sales pipeline. The Company has identified potential customers, including the federal, state and local governments, and is actively offering available services to them. However, the Company's projected revenues and planned cash needs depend on several factors, some of which are beyond the Company's control, including the rate at which its services are sold, the ability to retain its customer base, the willingness and timing of potential customers outsourcing the housing and management of their technology infrastructure to the Company, the reliability and cost-effectiveness of the Company's services and the Company's ability to market its services. The majority of the Company's planned operating cash improvement is expected to come from an increase in revenues and cash collections from customers. If the Company fails to achieve planned revenues, it will require additional financing. There can be no assurances that additional financing will be available, or that, if available the financing will be obtainable on terms acceptable to the Company or that any additional financing would not be substantially dilutive to existing shareholders. If the Company needs to obtain additional financing and fails to do so, it may have a material adverse effect on the Company's ability to meet financial obligations and operate as a going concern. 3. Summary of significant accounting policies The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with the instructions to Form 10-Q and do not include all of the information and note disclosures required by generally accepted accounting principles for complete annual financial statements. The unaudited condensed consolidated financial statements reflect all adjustments, consisting of normal recurring adjustments, which are, in the opinion of management, necessary to present a fair presentation of the results for the interim periods presented. Operating results for the quarter ended June 30, 2003 may not be indicative of the results that may be expected for the year ending March 31, 2004. Amounts as of March 31, 2003, included in the condensed consolidated financial statements have been derived from audited consolidated financial statements as of that date. These unaudited condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto included in the Company's Form 10-K for the year ended March 31, 2003. 6 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- Use of estimates The Company prepares its financial statements in conformity with generally accepted accounting principles in the United States of America. These principles require management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements and reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates. Reclassifications Certain reclassifications have been made to the prior periods' financial statements to conform with current presentation. Significant concentrations One customer accounted for approximately $384,000 of data center revenues for the three months ended June 30, 2003. Three customers accounted for approximately $208,000, $233,000 and $211,000 in data center revenues for the three months ended June 30, 2002. Stock-Based Compensation The Company uses the intrinsic value-based method to account for its employee stock-based compensation plans. Under this method, compensation expense is based on the difference, if any, on the date of grant, between the fair value of the Company's shares and the exercise price of the option. The Company has adopted the disclosure requirements of SFAS No. 148, "Accounting for Stock-Based Compensation - Transition and Disclosure - An Amendment of SFAS No. 123". The following table presents what the net loss and net loss per share would have been had the Company adopted SFAS No. 123 (in thousands, except per share data):
For the three months ended June 30, ------------------------------------ 2003 2002 ------------- ------------- Net income (loss) applicable to common shares - as reported $ 2,929,815 $ (7,972,419) ============= ============= Net income (loss) applicable to common shares - proforma $ 2,399,651 $ (8,670,399) ============= ============= Income (loss) per common share - as reported $ .01 $ (.04) ============= ============= Income (loss) per common share - proforma $ .01 $ (.04) ============= =============
7 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- The Company's fair value calculations for employee grants were made using the Black-Scholes option pricing model with the following weighted average assumptions:
2003 2002 ------------- ------------- Risk-free rate.................................... 2.14% - 2.90% 4.34% - 4.84% Volatility......................................... 155% 135% - 155% Expected life.................................... 5 years 5 years Expected dividends............................. 0% 0%
Beneficial conversion feature When the Company issues debt which is convertible into common stock at a discount from the common stock market price at the date the debt is issued, the Company recognizes a beneficial conversion feature for the difference between the closing price and the conversion price multiplied by the number of shares issuable upon conversion. The beneficial conversion feature is presented as a discount to the related debt with an offsetting amount increasing additional paid in capital. The discount is amortized as additional interest expense from the date the debt is issued to the date it first becomes convertible. Recent accounting standards In May 2003, the FASB issued SFAS No. 150, Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity. This Statement requires that an issuer classify financial instruments which are within its scope as a liability. Many of those instruments were classified as equity under previous guidance. Most of the guidance in SFAS No. 150 is effective for all financial instruments entered into or modified after May 31, 2003, and otherwise effective at the beginning of the first interim period beginning after June 15, 2003. The impact of the Company's adoption of SFAS 150 on its consolidated financial statements will be to increase liabilities and decrease mezzanine by amounts underlying its outstanding Series H redeemable preferred stock, which will be reclassified. In April 2003, the FASB issued SFAS No. 149, "Amendment of Statement 133 on Derivative Instruments and Hedging Activities." SFAS No. 149 amends and clarifies accounting for derivative instruments, including certain derivative instruments embedded in other contracts, and for hedging activities under SFAS No. 133. The new guidance amends SFAS No. 133 for decisions made as part of the Derivatives Implementation Group ("DIG") process that effectively required amendments to SFAS No. 133, and decisions made in connection with other FASB projects dealing with financial instruments and in connection with implementation issues raised in relation to the application of the definition of a derivative and characteristics of a derivative that contains financing components. In addition, it clarifies when a derivative contains a financing component that warrants special reporting in the statement of cash flows. SFAS No. 149 is effective for contracts entered into or modified after June 30, 2003 and for hedging relationships designated after June 30, 2003. The Company's management does not believe the adoption of SFAS No. 149 will have a material impact on our results of operations and consolidated financial statements. 8 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- In March 2003, the FASB reached a consensus on Emerging Issues Task Force (EITF) Issue No. 00-21, "Revenue Arrangements with Multiple Deliverables". The consensus provides guidance on the accounting for multiple element revenue arrangements. It also provided guidance on how to separate multiple element revenue arrangements into its separate units of accounting and how to measure and allocate the arrangement's total consideration to each unit. The effective date of EITF 00-21 is for revenue arrangements entered into in fiscal periods (interim or annual) beginning after June 15, 2003. Early application is permitted. The Company does not expect the adoption of EITF 00-21, effective July 1, 2003, to have a material effect on its financial statements. In January 2003, the FASB issued Interpretation No. 46 (FIN 46), "Consolidation of Variable Interest Entities, an Interpretation of ARB No. 51." This Interpretation provides guidance for determining a primary beneficiary period. The effective date of FIN 46 is the first interim period beginning after June 15, 2003 for variable interest entities acquired before February 1, 2003 and immediately to variable interest entities created after January 31, 2003. NAP de las Americas-Madrid S.A. may be a variable interest entity in accordance with FIN 46. The Company's maximum related exposure to loss is approximately $500,000 at June 30, 2003. The Company does not expect the adoption of FIN 46, effective beginning on July 1, 2003, to have a material effect on its financial statements. In November 2002, the FASB issued Interpretation No. 45 (FIN 45), "Guarantor's Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others." For guarantees issued or modified after December 31, 2002, a liability will be recognized for the fair value of the obligation undertaken in issuing the guarantee. The disclosure requirements were effective for interim and annual financial statements for periods ending after December 15, 2002. FIN 45 may impact the Company's financial position or results of operations in subsequent periods, if existing guarantees are modified. In April 2002, the FASB approved FASB Statement No. 145 (SFAS 145), Rescission of FASB Statements No. 4, 44 and 64, Amendment of FASB Statement No. 13 and Technical Corrections. In addition to rescinding SFAS 4, 44, and 64 and amending SFAS 13, SFAS 145 establishes a financial reporting standard for classification of extinguishment of debt in the financial statements in accordance with APB 30. SFAS 145 is effective for the Company's fiscal year ended March 31, 2004. Management does not expect the adoption of SFAS 145 to have a material effect on the Company's financial position. However, SFAS 145 had an impact the presentation of the results of operations for the quarter ended June 30, 2003 (see Note 5). 9 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- 5. Notes payable Notes payable consist of the following:
June 30, March 31, 2003 2003 ----------- ----------- (unaudited) Notes payable to third parties: Note payable to Ocean Bank, collateralized by substantially all assets of the NAP of the Americas and a personal guaranty of the Chief Executive Officer. On April 30, 2003, the note payable to Ocean Bank was reclassified to "Notes Payable to Related Parties" $ -- $43,974,553 Unsecured notes payable to a corporation, interest accrues at 10%. Principal and interest due April 1, 2004. On April 30, 2003, $1,000,000 was converted to convertible debt (Note 7). 3,300,000 4,450,000 Unsecured note payable to a corporation, interest accrues at 15%. Principal and interest due on April 1, 2004. 1,000,000 1,000,000 Unsecured notes payable, interest ranges from 10% to 15%. Principal and interest due between September 2003 and March 2005. 869,947 291,669 Note payable to a corporation, collateralized by certain assets of a director and certain shareholders of the Company Interest accrues at 1% over prime, due on December 31, 2003. 417,178 667,178 Unsecured note payable to a corporation, interest accrues at 9%. Due on demand. -- 518,501 Unsecured note payable to a corporation, interest accrues at 10% Principal and interest due on May 30, 2003. On April 30, 2003, amount was converted to convertible debt (Note 7). -- 1,500,000 Unsecured notes payable to individuals, interest accrues at 10% Principal and interest due on March 31, 2003. On April 30, 2003, amounts were converted to convertible debt (Note 7). -- 1,000,000 ----------- ----------- Total notes payable to third parties 5,587,125 53,401,901 ----------- ----------- Notes payable to related parties: Note payable to Ocean Bank, collateralized by substantially all assets of the NAP of the Americas and a personal guaranty of the Chief Executive Officer Amount includes $5.3 million of gain on debt restructuring to be amortized monthly to reduce interest expense over the life of the remaining debt. 34,287,053 --
10 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - --------------------------------------------------------------------------------
June 30, March 31, 2003 2003 ----------- ----------- (unaudited) Unsecured note payable to a corporation controlled by a shareholder, interest accrues at 15%. Principal and interest due on April 1, 2004. 1,600,000 1,600,000 Unsecured notes payable to certain executives and directors of the Company and third party corporations, interest accrues at 13%. Principal and interest is due April 1, 2004. On April 30, 2003, $700,000 was converted to convertible debt (Note 7). 782,660 1,500,000 Note payable to the Chief Executive Officer. Interest accrues at 10%. Principal and interest due on June 30, 2003. In April 30, 2003, amount was converted to convertible debt (Note 7). -- 1,000,000 Unsecured note payable to the Chief Executive Officer. Interest accrues at 7.5%, payable monthly, with principal installments of $50,000 due on a quarterly basis commencing on June 26, 2002, and maturing on June 26, 2003. -- 100,000 Unsecured note payable to a shareholder, interest accrues at 10%. Due on demand. -- 38,000 ----------- ----------- Total notes payable to related parties 36,669,713 4,238,000 ----------- ----------- 42,256,838 57,639,901 Less: current portion of notes payable 9,341,672 1,464,963 ----------- ----------- Notes payable, less current portion $32,915,166 $56,174,938 =========== ===========
On September 5, 2001, the Company closed on a $48 million credit facility from Ocean Bank. During August 2002, the Company modified the credit facility. Under the modified terms, the initial maturity date was extended to September 2003 and the Company had the option to exercise two six-month extension periods. At closing, the total amount of the credit facility was disbursed except for approximately $6.6 million that was held as an interest reserve. Through June 2002, the interest reserve was disbursed monthly to make interest payments. The amendment reduced the annual interest rate to 7.50%. The Company commenced making monthly interest payments in July 2002. All other material provisions of the credit facility remained unchanged. To obtain the original loan, the Company paid a $720,000 commitment fee to the lender. The proceeds of the original credit facility were used to: o repay a $10 million short-term loan from Mr. Medina, the proceeds of which the Company had used to fund the build out of the NAP of the Americas (Mr. Medina, in turn, used the $10 million to repay a personal $10 million short-term loan from Ocean Bank); o repay $3.5 million of debt that the Company owed to Ocean Bank under a line of credit personally guaranteed by Mr. Medina; 11 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- o pay $1.2 million in loan costs related to the $48 million credit facility (including $720,000 commitment fee); and o fund the NAP of the Americas build out costs. On April 30, 2003, Ocean Bank revised its loan with the Company by converting, at $.75 per common share, $15.0 million of the outstanding principal balance under the credit facility into 20 million shares of the Company's common stock with an approximate $9.6 million market value and extending the term of the remaining $29.0 million until April 30, 2006. The resulting $5.4 million debt restructuring gain was deferred and recorded in notes payable and is being amortized as reductions in interest expense over the life of the remaining debt. Concurrent with this transaction, the Company paid all past due interest as of March 31, 2003, plus accrued interest through April 28, 2003 totaling approximately $1.6 million and prepaid interest of approximately $900,000. Under the new terms, interest will be payable monthly at an annual stated rate of 5.25% for the first twelve months and 7.5% thereafter. The loan is secured by all of the Company's assets and allows for up to a $25 million junior lien position on the assets of its NAP of the Americas, Inc. subsidiary. Mr. Medina has personally guaranteed the loan with Ocean Bank. In addition to Mr. Medina's personal guarantee of the loan, and in order to obtain the credit facility, the bank further required Mr. Medina, prior to the bank disbursing funds under the credit facility, to (i) provide a $5.0 million certificate of deposit to the bank as collateral for certain personal loans that Mr. Medina has with the bank and (ii) commit to accelerate the maturity date of those personal loans to December 31, 2001. Subsequent to September 2001, Mr. Medina and the bank changed the maturity date on his personal loans, first to December 31, 2001 and later to July 1, 2002. In the event of the Company's default under the credit facility Mr. Medina also agreed to subordinate any debt that the Company owed to Mr. Medina until the credit facility is repaid in full. Mr. Medina has repaid part of his personal loans to the bank through liquidation of the $5.0 million certificate of deposit in January 2002, leaving an outstanding principal balance of approximately $4.8 million and he exercised his right under such personal loan agreements to extend their maturity date from July 1, 2002 to June 30, 2003. Subsequent to June 30, 2003, Mr. Medina has exercised his option to extend the loan to December 31, 2003 and has made a principal payment of $200,000 resulting in a $4.6 million balance. On September 5, 2001 and in consideration of Mr. Medina's agreeing to repay his indebtedness to the bank earlier than otherwise required, pledging the certificate of deposit to the bank and personally guaranteeing the $48 million credit facility and approximately $21 million of construction payables, the Company entered into an amended and restated employment agreement with him. Under the terms of the amended and restated employment agreement, the Company will indemnify Mr. Medina from any personal liability related to his guarantees of the Company's debt, use commercially reasonable efforts to relieve Mr. Medina of all his guarantees of the Company's debt, provide up to $6.5 million of cash collateral to the bank should Mr. Medina be unable to repay the personal loans when due and provide a non interest-bearing $5.0 million loan to Mr. Medina for as long as his guarantees of the Company's debt exist. Mr. Medina and the Company have agreed that the Company has the right to withhold payment to Mr. Medina of the $1,375,000 in convertible debt 12 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- held by him until the note to the Company is repaid. The note receivable from Mr. Medina is shown as an adjustment to equity. The $48 million credit facility and the note receivable from Mr. Medina were approved by the Board of Directors. Mr. Medina's note to the Company has a maturity date of December 5, 2004 and bears interest subsequent to September 5, 2002 at 2%, the applicable federal rate. Interest is due in bi-annual installments beginning on June 30, 2003. The Company reviews the collectibility of this note on a quarterly basis. 6. Construction payables Construction payables at June 30, 2003 relate to construction of the Company's colocation facility in Santa Clara, California and technology construction work. On November 8, 2002, CRG, LLC entered into an agreement with Cupertino Electric, Inc. to purchase the entire $18.5 million construction payable (including accrued interest) owed to Cupertino. On November 11, 2002, the Company entered into an agreement with CRG that provided the Company the option, upon the closing of the purchase of the debt by CRG from Cupertino, to repay the entire debt at a discount by either issuing shares of the Company's common stock valued at $0.75 per share or making a cash payment of $9.9 million. On December 5, 2002, CRG, LLC entered into an agreement with Kinetics Mechanical Services, Inc. and Kinetics Systems Inc. to purchase the Company's $4.1 million construction payable (including accrued interest) to Kinetics Mechanical Services, Inc. and Kinetics Systems Inc. On December 5, 2002, the Company entered into an agreement with CRG that provided the Company with the option, upon the closing of the purchase of the debt by CRG from Kinetics Mechanical Services, Inc. and Kinetics Systems Inc., to repay the entire debt at a discount by either issuing shares of the Company's common stock valued at $0.75 per share or making a cash payment of $2.4 million. On April 30, 2003, CRG, LLC ("CRG"), an entity newly formed by a shareholder of the Company, completed the purchase, at a discount, of the Company's $22.6 million construction payables (including accrued interest) to Cupertino Electric, Inc., Kinetics Mechanical Services, Inc. and Kinetics Systems Inc., all of which were construction contractors for the NAP of the Americas. At the closing, CRG's purchased construction payables were converted at $.75 per common share into 30,133,334 shares of the Company's common stock with an approximate $14.1 million market value in accordance with the November 11, 2002 and the December 5, 2002 option agreements. As a result of these transactions, the Company recorded a gain on debt restructuring of approximately $8.5 million. 7. Convertible debt On April 30, 2003, the Company issued 10% Subordinated Secured Convertible Debentures (the "Subordinated Debentures") due April 30, 2006 for an aggregate principal amount of $25.0 million. The debentures are convertible into shares of the Company's stock at $0.50 per share. Interest is 13 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- payable quarterly beginning July 31, 2003. The debentures were issued in exchange for $10.3 million in cash, $9.5 million in a promissory note due in full May 30, 2003 and $5.2 million of notes payable converted to the Subordinated Debentures. Included in the $5.2 million is $2.0 million of cash received in March 2003 in anticipation of the debenture transaction. The maker of the $9.5 million promissory note failed to pay but agreed on June 16, 2003 to assign the note and the debenture to an entity newly formed by the son of a director of the Company. Payments received as of August 14, 2003, aggregated approximately $6.9 and the maturity of the remaining subscription receivable of $2.6 million has been extended from August 15, 2003 to September 15, 2003. Two of the Company's directors have guaranteed payment and performance in accordance with the amended terms of the note. Management believes that collection on the remaining balance is reasonably assured. The $3.7 million of subscription receivable has been presented as an offset to paid in capital. In connection with this transaction, the Company recognized a beneficial conversion feature of $9.5 million, based on the June 16, 2003 measurement date. As of June 30, 2003, the Company has outstanding approximately $11,130,000, $2,750,000 and 25,000,000 of 13%, 13.125%, and 10% subordinated convertible debt, respectively. The 13% debt matures on December 31, 2005, the 13.125% debt matures on August 30, 2004 and the 10% debt matures April 30, 2006. The debt is convertible into the Company's stock at a weighted average conversion price of $1.8, $0.61 and $0.50 for the convertible debt issued at 13%, 13.125% and 10%, respectively. Prepayment by the Company is permitted under the 10% debt instrument subsequent to April 30, 2004. Prepayment by the Company is permitted under the 13% and 13.125% debt instruments, but will entitle holders of the 13% subordinated debentures to warrants or a premium over their outstanding principal and interest based upon the following schedule: Year Redemption Price ---- ---------------- 2003 103% 2004 102% 2005 100% 8. Changes to stockholders' deficit During the three months ended June 30, 2003, the Company entered into the following equity transactions: Common stock In June 2003, approximately $4,000 of warrants were converted to 9,500 shares of common stock at $0.48 per share. In June 2003, 42,667 shares of common stock were issued in conjunction with the exercise of 36,667 employee stock options at $0.51 and 6,000 employee stock options at $0.52. In April 2003, in conjunction with the Ocean Bank debt conversion of $15.0 million in debt to equity, the Company issued 20.0 million shares of common stock at $0.75 per share. 14 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- In April 2003, in conjunction with the CRG transaction whereby $21.6 million in construction payables plus $1.0 million in accrued interest was converted to equity, the Company issued 30.1 million shares of common stock at $0.75 per share. Stock warrants During the period from March 2001 through June 30, 2003, the Company issued warrants to third parties for services and to facilitate certain debt and equity transactions. The following table summarizes information about stock warrants outstanding as of June 30, 2003:
Estimated Issuance No. of shares Exercise Expiration Fair Value Date able to purchase Price Date at Issuance -------- ---------------- -------- ---------- ----------- June 2003 300,000 $ 0.50 June 2006 $ 220,200 June 2003 250,000 0.75 June 2006 177,750 March 2003 300,000 0.75 March 2007 110,400 December 2002 300,000 0.75 March 2007 110,400 October 2002 1,200,000 0.75 October 2004 90,000 July 2002 100,000 0.54 July 2005 20,900 April 2002 600,000 0.40 March 2007 220,800 June 2001 13,000 1.72 June 2011 22,490 January 2002 9,500 0.48 June 2011 3,971 March 2001 300,000 2.00 March 2006 352,200 November 2000 250,000 2.76 November 2008 394,000 April 2000 600,000 1.25 March 2004 501,874 --------- ----------- Total 4,222,500 $ 2,224,985 ========= ===========
9. Related party transactions Due to the nature of the following relationships, the terms of the respective agreements might not be the same as those that would result from transactions among wholly unrelated parties. The Company's Chief Executive Officer and other related parties have either provided or guaranteed some of our debt or equity financing. In addition, services are provided to entities in which the Company owns stock. 15 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- Following is a summary of transactions for the three months ended June 30, 2003 and 2002 and balances with related parties included in the accompanying balance sheet as of June 30, 2003 and March 31, 2003.
June 30, June 30, 2003 2002 ---------- --------- Rent expense $929,000 $890,000 Property management and construction fees 64,000 47,000 Revenues from NAP de las Americas - Madrid 17,000 66,000 Interest income on notes receivable - related party (Note 5) 19,000 -- Interest income from shareholder 8,000 8,000 Interest expense (Notes 5 and 7) 284,000 309,000
June 30, March 31, 2003 2003 ---------- --------- Other Assets 479,000 471,000 Note receivable - related party 5,000,000 5,000,000 Notes payable to related parties (Note 5) 36,670,000 4,238,000 Convertible debt (Note 7) 3,650,000 3,450,000
In April 2003, in connection with the issuance of the Subordinated Debentures the Company received $250,000 from two directors. Included in accounts receivable is a non-trade receivable of approximately $59,000 due from a related party. There is also a corresponding payable of approximately $59,000 to the same related party. 10. Information about the Company's operating segments As of June 30, 2003 and March 31, 2003, the Company had two reportable business segments, data center operations and real estate services. The data center operations segment provides Tier 1 NAP, Internet infrastructure and managed services in a data center environment. The real estate services segment constructs and manages real estate projects focused in the technology sector. 16 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- The Company's reportable segments are strategic business operations that offer different products and services. The accounting policies of the segments are the same as those described in significant accounting policies. Revenues generated among segments are recorded at rates similar to those recorded in third-party transactions. Transfers of assets and liabilities between segments are recorded at cost. The Company evaluates performance based on the segment's net operating results. The following presents information about reportable segments.
For the three months ended Data center Real estate June 30, operations services Total ------------------------- ----------- ----------- ------------ 2003 ------------------------- Revenue $ 3,302,152 $ 139,045 $ 3,441,197 Loss from operations (3,599,768) (164,170) (3,763,938) Net income (loss) 3,093,985 (164,170) 2,929,815 2002 ------------------------- Revenue $ 3,149,766 $ 2,033,118 $ 5,182,884 Loss from operations (4,978,656) (53,420) (5,032,076) Net loss (7,925,997) (46,422) (7,972,419) Assets, as of ------------------------- June 30, 2003 $73,899,432 $ 21,903 $ 73,921,335 March 31, 2003 $67,595,113 $ 2,006,400 $ 69,601,513
A reconciliation of total segment loss from operations to income (loss) before income taxes for the three months ended June 30, 2003 and 2002 follows:
For the three months ended June 30, --------------------------------- 2003 2002 ----------- ----------- Total segment loss from operations $(3,763,938) $(5,032,076) Debt restructuring 8,475,000 -- Interest income 23,255 28,865 Interest expense (1,832,070) (3,015,627) Dividend on preferred stock (7,497) (7,497) Other expense 35,065 53,916 ----------- ----------- Income (loss) before income taxes $ 2,929,815 $(7,972,419) =========== ===========
17 Terremark Worldwide, Inc. and Subsidiaries Notes to Condensed Consolidated Financial Statements-Continued June 30, 2003 - -------------------------------------------------------------------------------- 11. Supplemental cash flow information
For the three months ended June 30, -------------------------------- 2003 2002 ----------- ----------- Supplemental disclosures of cash flow information: Cash paid for interest $ 5,592,406 $ 2,323,984 ----------- ----------- Taxes Paid -- -- ----------- ----------- Non-cash operating, investing and financing activities: Warrants issued for services 397,950 220,800 ----------- ----------- Conversion of notes payable to convertible debt 5,450,000 -- ----------- ----------- Beneficial conversion feature on issuance of convertible debentures 9,500,000 -- ----------- ----------- Stock options and warrants exercised and converted to equity 21,311 -- ----------- ----------- Conversion of debt and related accrued interest to equity 9,375,000 3,350,000 ----------- ----------- Conversion of construction payables and accrued interest to equity 14,125,000 -- ----------- ----------- Conversion of liabilities of discontinued operations to equity -- 609,000 ----------- ----------- Forgiveness of construction payables -- 904,156 ----------- ----------- Conversion of convertible debt and related accrued interest to equity -- 242,700 ----------- ----------- Conversion of common stock subscriptions to common stock and paid in capital -- 950,000 ----------- ----------- Cancellation of warrants 26,575 -- ----------- -----------
* * * * * 18 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. The following discussion should be read in conjunction with the information contained in our Annual Report on Form 10-K for the fiscal year ended March 31, 2003, our Condensed Consolidated Financial Statements and elsewhere in this filing. The information is intended to facilitate an understanding and assessment of significant changes and trends related to our financial condition and results of operations. Our Going Concern Uncertainty Our consolidated financial statements as of and for the year ended March 31, 2003 were prepared on the assumption that we will continue as a going concern, which contemplates the realization of assets and liquidation of liabilities in the normal course of business. Our independent auditors have issued a report dated June 30, 2003 stating that our recurring operating losses, negative cash flows, and liquidity deficit raise substantial doubt as to our ability to continue as a going concern. Investors in our securities should review carefully our financial statements and the report of our independent accountants thereon. See "-- Liquidity and Capital Resources" below for a description of our plans to mitigate the business and financial circumstances giving rise to our going concern uncertainty. Recent Events In July 2003, we opened our NAP in Santa Clara, California to provide our customers with carrier-neutral access to the major cable systems serving the US West Coast, Asia/Pacific, Mexico, Central America, Europe and Latin America from both the west and east coasts of the United States. This footprint extension adds to the existing NAPs in Miami, Florida, Brazil and Spain, furthering our vision of integrating a global network of NAPs. In addition, the new NAP will provide additional redundancy to the network operations center at our NAP of the Americas in Miami. Since we had previously built-out the facility, opening the facility required only minimal capital expenditures. Overview We operate facilities at strategic locations around the world from which we assist users of the Internet and large communications networks in communicating with other users and networks. Our primary facility is the NAP of the Americas, where we provide exchange point, colocation and managed services to carriers, Internet service providers, network service providers, government entities, multi-national enterprises and other end users. Network access points are locations where two or more networks meet to interconnect and exchange Internet and data traffic (traffic of data, voice, images, video and all forms of digital telecommunications), much like air carriers meet at airports to exchange passengers and cargo. Instead of airlines, however, participation in NAPs comes from telecommunications carriers, Internet service providers and large telecommunications and Internet users in general. Tier-1 NAPs are large centers that access and distribute Internet traffic and, following the airport analogy, operate much like large, international airport passenger and cargo transportation terminals or "hubs." 2 Initially, four NAPs -- in New York, Washington, D.C., Chicago, and San Francisco -- were created and supported by the National Science Foundation as part of the transition from the United States government-financed Internet to a commercially operated Internet. Since that time, privately owned NAPs have been developed, including the NAP of the Americas. We refer to our facilities as TerreNAP Centers. Our TerreNAP Centers are carrier-neutral. We enable our customers to freely choose from among the many carriers available at TerreNAP Centers the carriers with which they wish to do business. We believe the carrier neutrality provides us with a competitive advantage when compared to carrier-operated network access points where customers are limited to conducting business with one carrier. The NAP of the Americas generates revenue by providing our customers with: o the site and platform they need to exchange Internet and data traffic; o a menu of related professional and managed services; and o space to house their equipment and their network facilities in order to be close to the Internet and data traffic exchange connections that take place at the NAP of the Americas. Currently, our customers include telecommunications carriers such as AT&T, MCI, Qwest and Sprint, enterprises such as Bacardi USA, Intrado and Crescent Heights, and government agencies including the Diplomatic Telecommunications Services Programming Office (DTSPO), a division of the United States Department of State, and the City of Coral Gables. Organization History On April 28, 2000, Terremark Holdings, Inc. completed a reverse merger with AmTec, Inc., a public company. Contemporaneous with the reverse merger, we changed our corporate name to Terremark Worldwide, Inc. and adopted "TWW" as our trading symbol on the American Stock Exchange. Historical information of the surviving company is that of Terremark Holdings, Inc. Terremark was formed in 1982 and, along with its subsidiaries, was engaged in the development, sale, leasing, management and financing of various real estate projects. Terremark provided these services to private and institutional investors, as well as for its own account. The real estate projects with which Terremark was involved included retail, high-rise office buildings, mixed-use projects, condominiums, hotels and governmental assisted housing. Terremark was also involved in a number of ancillary businesses that complemented its core development operations. Specifically, Terremark engaged in brokering financial services, property management, construction management, condominium hotel management, residential sales and commercial leasing and brokerage, and advisory services. After the April 28, 2000 merger, and as a result of changes in our business conditions, including market changes in the telecommunications industry and the lack of debt and equity financing vehicles to fund other business expansion, we began to redefine and focus our strategy, and began implementing a plan to exit all lines of business and real estate activities not directly related to the TerreNAP Center strategy. Lines of business discontinued included IP fax services, unified messaging services, and telephony. Non-core real estate activities exited included real estate development, property management, financing and the ancillary businesses that complemented the real estate development operations. Our real estate activities currently include technology construction work and management of the property where the NAP of the Americas is located. As of March 31, 2002, we had completed the exit of lines of business and real estate activities not related to our TerreNAP Center strategy. 3 Our principal executive office is located at 2601 S. Bayshore Drive, Miami, Florida 33133. Our telephone number is (305) 856-3200. Results of Operations Results of Operations for the Three Months Ended June 30, 2003 as Compared to the Three Months Ended June 30, 2002 Revenue. Data center revenue increased by approximately $951,000 in the current period as compared to the prior period. However, total revenue decreased $1.8 million, or 34.6%, to $3.4 million for the three months ended June 30, 2003 from $5.2 million for the three months ended June 30, 2002. The decrease is due to a reduction in our development, management and construction contracts revenue of approximately $1.9 million and a contract termination fee from data center revenue of approximately $799,000 in 2002, partially offset by an increase in data center revenue of approximately $951,000. For the three months ended June 30, 2003 and 2002, approximately 99.5% and 98.7%, respectively, of our revenues were generated in the United States. The remainder of our revenues for the period consisted of non-recurring services billed to NAP of the Americas - Madrid. For the three months ended June 30, 2003, approximately 96% of our total revenues were generated from data center operations. The remainder was substantially related to technology construction work. For the three months ended June 30, 2002 approximately 61% of total revenues were generated from data center operations, approximately 37% was from real estate projects and technology construction work, and approximately 2% was from property and construction management. Data center revenue increased $951,000, or 45%, to $3.0 million for the three months ended June 30, 2003 from $2.1 million for the three months ended June 30, 2002. Revenues consisted of recurring revenues of $2.7 million and $1.7 million for the three months ended June 30, 2003 and 2002, respectively, primarily from charges for colocation, power, peering and some managed services. Non-recurring revenues were $304,000 and $315,000 for the three months ended June 30, 2003 and 2002, respectively, primarily related to some managed services and the recognized portion of deferred installation fees. Installation fees are recognized ratably over the term of the contract. The increase in revenue was primarily the result of an increase in orders from existing customers and growth in our deployed customer base from 52 customers as of June 30, 2002 to 95 customers as of June 30, 2003. We anticipate an increase in revenue from colocation, power and peering and revenue from managed services as we add more customers to the NAP of the Americas, sell additional services to existing customers and introduce new products and services. Data center -- contract termination fee was $292,000 for the three months ended June 30, 2003 and represents amounts received from one customer for the termination of their contracted services with the NAP of the Americas. As a result of this contract termination, we experienced a decrease in monthly recurring revenues of approximately $36,000. Contract termination fee was $1.1 million for the three months ended June 30, 2002 and represents amounts received from one customer for the termination of their contracted services with the NAP of the Americas. Contract termination fees are recognized upon contract termination when there are no remaining contingencies or obligations on our part. Development, commission and construction fees increased $23,000 to $41,000 for the three months ended June 30, 2003 from $18,000 for the three months ended June 30, 2002. We do not expect any revenues from development, commission and construction fees in the future. 4 Management fees decreased $19,000, or 22.8%, to $64,000 for the three months ended June 30, 2003 from $83,000 for the three months ended June 30, 2002. The decrease is a result of our exiting the management of commercial and residential properties. The only facility we currently manage is TECOTA, the property in which the NAP of the Americas is located. We collect a monthly management fee from TECOTA of approximately $8,000 or 3% of cash collected by TECOTA, whichever is greater. During the three months ended June 30, 2002, we managed two properties, one of which was TECOTA. Because we do not plan to manage properties other than TECOTA, we anticipate that management fees will not be a significant source of revenues in the future. Construction contract revenue decreased $1.9 million to $34,000 for the three months ended June 30, 2003 from $1.9 million for the three months ended June 30, 2002. During the three months ended June 30, 2003, we completed one construction contract and, as of June 30, 2003, had two construction contracts in process. During the three months ended June 30, 2002, we completed three construction contracts and, as of June 30, 2002, we had two construction contracts in process. The decrease in construction contract revenue is due to a decrease in the average revenue per contract, which decreased from $3.6 million in fiscal year 2002 to $500,000 in fiscal year 2003. Due to our opportunistic approach to our construction business, we expect revenues from construction contracts to significantly fluctuate from quarter to quarter. We anticipate focusing our efforts on obtaining construction contracts for projects related to technology infrastructure. Data Center Operations Expenses. Data center operations expenses decreased $500,000, or 16.1%, to $2.6 million for the three months ended June 30, 2003 from $3.1 million for the three months ended June 30, 2002. Data center operations expenses consist mainly of rent, operations personnel, electricity, chilled water and security services. The period over period decrease in data operations expenses is due to decreases of $91,000 in chilled water, $62,000 in security services, $63,000 in insurance and $241,000 in personnel costs. The decrease in chilled water is mainly due to overcharges by our service provider for which we subsequently received credits. The decrease in security services and insurance is due to the negotiation of lower rates. The decrease in payroll is mainly attributable to staff reductions, including two Senior Vice Presidents and five directors, some of which were replaced with lower payroll level positions. The number of employees whose salaries are included in data center operations decreased slightly from 59 for the three months ended June 30, 2002 to 56 for the three months ended June 30, 2003. With the exception of electricity and chilled water, these expenses are fixed in nature. However, commencing in fiscal year 2004, we anticipate that certain data center expenses, principally costs related to managed services, will increase as we provide additional services to existing customers and introduce new products and services. We also expect that electricity and chilled water expenses will increase in the future as we add more customers to the NAP of the Americas. Contract Construction Expenses. Contract construction expenses decreased $1.8 million to $46,000 for the three months ended June 30, 2003 from $1.8 million for the three months ended June 30, 2002. This decrease is a result of the decrease in number of construction contracts and dollar amount of those projects as discussed above in "construction contracts revenues." We do not currently anticipate losses on any of the individual construction contracts. General and Administrative Expenses. General and administrative expenses decreased $640,000, or 19.4%, to $2.6 million for the three months ended June 30, 2003 from $3.3 million for the three months ended June 30, 2002. General and administrative expenses consist primarily of salaries and related expenses, professional service fees, rent and other general corporate expenses. The decrease in general and administrative expenses is due to decreases in professional service fees of $223,000, property taxes of $75,000, decrease in travel and entertainment of $110,000 and decrease in payroll of $163,000. The decreases in professional services and travel and entertainment are principally the result of an overall reduction in spending due to cost containment efforts. The decrease in payroll is mainly attributable to staff reductions. The number of employees whose salaries are included in general and administrative expenses decreased from 48 for the three months ended June 30, 2002 to 43 for the three months ended June 30, 2003. The decrease in property taxes is mainly due reductions in the taxable basis of certain 5 property and equipment. Effective July 22, 2003, Brian K. Goodkind stepped down as our Executive Vice President and Chief Operating Officer and became a strategic advisor to our Chief Executive Officer. In connection with this modification to our employment relationship with Mr. Goodkind, we accelerated the vesting on his outstanding stock options and awarded him new stock options. As a result, we will recognize a non-cash, stock-based compensation charge of approximately $1.8 million in the quarter ended September 30, 2003. Sales and Marketing Expenses. Sales and marketing expenses for the three months ended June 30, 2003 remained constant at approximately $770,000 when compared to three months ended June 30, 2002. The significant components of sales and marketing expenses are payroll and benefits. The number of employees whose salaries are included in sales and marketing expenses were 21 as of June 30, 2002 and 22 as of June 30, 2003. Depreciation and Amortization Expense. Depreciation and amortization expense decreased $47,000 to $1.2 million for the three months ended June 30, 2003 from $1.2 million for the three months ended June 30, 2002. The decrease was due to reductions in property and equipment during year ended March 31, 2003, which in turn decreased depreciation expense. Debt Restructuring. During the three months ended June 30, 2003, we incurred a non-cash gain of $8.5 million related to financing transactions whereby $21.6 million of our construction payables plus $1.0 million in accrued interest was converted to 30.1 million shares of our common stock with a $14.1 million market value upon conversion. Interest Expense. Interest expense decreased $1.2 million, or 40.0%, to $1.8 million for the three months ended June 30, 2003 from $3.0 million for the three months ended June 30, 2002. The decrease was due to a $33.0 million decrease in the average debt balance outstanding. Interest Income. Interest income decreased $6,000 to $23,000 for the three months ended June 30, 2003 from $29,000 for the three months ended June 30, 2002. The period over period decrease is related to a decrease in average interest earning cash balances and lower interest rates earned when compared to prior period. This decrease was offset by a $12,000 increase in interest income resulting from a $5.0 million note receivable from our Chief Executive Officer, which began accruing interest in September 2002. Net Income (Loss). Net income was $2.9 million for the three months ended June 30, 2003 as compared to a net loss of $8.0 million for the three months ended June 30, 2002. The net income for the three months ended June 30, 2003 is mainly due to one-time, non-cash items, including debt-restructuring gain of approximately $8.5 million and a reduction in interest expense of approximately $1.2 million. Liquidity and Capital Resources Liquidity From the time of the merger with AmTec through June 30, 2003, we have incurred net operating losses of approximately $199.7 million including approximately $82.6 million of losses related to discontinued operations. Our cash flows from operations for the three months ended June 30, 2003 and 2002 were negative and our working capital deficit was approximately $14.0 million and $39.0 million as of June 30, 2003 and March 31, 2003, respectively. Due to our recurring losses from operations, the uncertainty surrounding the anticipated increase in revenues and the lack of committed sources of additional debt or equity, substantial doubt exists about our ability to continue as a going concern. Historically, we have met our liquidity needs primarily through obtaining additional debt financing and the issuance of equity interests. Some of our debt financing was either provided by or guaranteed by Manuel D. 6 Medina, our Chief Executive Officer and Chairman of the Board. In prior periods we also successfully shut down or disposed of non-core operations and implemented a series of expense reductions to reduce our liquidity needs. We have also been successful in working with our creditors to extend payment terms. Our main sources of liquidity as of June 30, 2003 were cash and cash equivalents amounting to approximately $5.3 million, a note receivable amounting to approximately $3.7 million issued for the purchase of a portion of our convertible debentures which we anticipate collecting no later than September 15, 2003 and our projected increase in monthly revenues. We will continue to work, if needed, with our creditors to obtain additional financing and/or extend terms of existing short-term debt. We will also continue to evaluate opportunities to sell additional equity or debt securities, obtain credit facilities from lenders, or restructure our debt. Based on customer contracts signed as of August 11, 2003, our monthly cash deficit from operations is approximately $1.2 million. In order to eliminate this current monthly cash deficit from operations, the new monthly revenues required range from $1.8 million to $2.8 million. This range of new revenue depends on the mix of the services sold and their corresponding margin. Our required revenues are based on existing contracts, including those with the U.S. Government and enterprises, and expected future contracts from potential customers currently in our sales pipeline. We have identified additional potential customers, including the federal, state and local governments, and are actively offering available services to them. However, our projected revenues and planned cash needs depend on several factors, some of which are beyond our control, including the rate at which our services are sold to the government sector and the commercial sector, the ability to retain our customer base, the willingness and timing of potential customers outsourcing the housing and management of their technology infrastructure to us, the reliability and cost-effectiveness of our services and our ability to market our services. The majority of our planned operating cash improvement is expected to come from an increase in revenues and cash collections from customers. If we fail to achieve planned revenues we will require additional financing. There can be no assurance that additional financing will be available, or that, if available the financing will be obtainable on terms acceptable to us or that any additional financing would not be substantially dilutive to existing shareholders. If we need to obtain additional financing and fail to do so, it may have a material adverse effect on our ability to meet financial obligations and operate as a going concern. Sources and uses of cash Cash used in operations for the three months ended June 30, 2003 was approximately $10.0 million compared to cash used in operations of $4.4 million for the three months ended June 30, 2002, an increase of $5.6 million. This increase was primarily due to an increase in payments to accounts payable, accrued expenses and interest payable. These payables and accruals decreased an aggregate amount of $5.2 million in the three months ended June 30, 2003 as compared to an increase in the aggregate amount of $772,000 in the three months ended June 30, 2002. Cash used in investing activities for the three months ended June 30, 2003 was $91,000 compared to cash used in investing activities of $890,000 for the three months ended June 30, 2002, a decrease of $799,000. The decrease in the amount of cash used in investing activities is the result of the completion of the NAP of the Americas and a portion of our colocation facility in Santa Clara, California. For the three months ended June 30, 2003, cash of $84,000 was used primarily for the purchase of property and equipment related to the NAP of the Americas. For the three months ended June 30, 2002, cash of $650,000 was used primarily for the purchase of property and equipment related to the NAP of the Americas. 7 Cash provided by financing activities for the three months ended June 30, 2003 was $14.1 million compared to cash provided by financing activities of $6.9 million for the three months ended June 30, 2002, an increase of $7.2 million. The increase in cash provided by financing activities resulted primarily from an increase of $15.8 million of new borrowings partially offset by a decrease in sale of common stock and warrants of $7.6 million. Debt and equity activity Ocean Bank Credit Facility: On September 5, 2001, we borrowed $48.0 million from Ocean Bank. The Ocean Bank credit facility is secured by all of our assets and allows for up to a $25.0 million junior lien position on the assets of our NAP of the Americas, Inc. subsidiary. To obtain the original loan, we paid a $720,000 commitment fee to Ocean Bank. The proceeds of the original credit facility were used to: o repay a $10.0 million short-term loan from Manuel D. Medina, our Chief Executive Officer, the proceeds of which we had used to fund the build out of the NAP of the Americas (Mr. Medina, in turn, used the $10.0 million to repay a personal $10.0 million short-term loan from Ocean Bank); o repay $3.5 million of debt that we owed to Ocean Bank under a line of credit personally guaranteed by Mr. Medina; o pay $1.2 million in loan costs related to the $48.0 million credit facility (including a $720,000 commitment fee); and o fund the NAP of the Americas build out costs. Mr. Medina has personally guaranteed the credit facility. In addition to Mr. Medina's personal guarantee of the credit facility, and in order to obtain the facility, Ocean Bank required Mr. Medina, prior to the bank disbursing funds under the credit facility, to provide a $5.0 million certificate of deposit to the bank as collateral on certain personal loans that Mr. Medina has with the bank and commit to accelerate the maturity date of those personal loans to December 31, 2001. Subsequent to September 2001, Mr. Medina and the bank extended the maturity date on his personal loans, first to December 31, 2001 and later to July 1, 2002. In the event of our default under the credit facility, Mr. Medina also agreed to subordinate debt that we owed to him. Mr. Medina has repaid part of those personal loans to Ocean Bank through liquidation of the $5.0 million certificate of deposit in January 2002, leaving an outstanding principal balance of approximately $4.6 million. In addition, he exercised his right under the personal loan agreements to extend their maturity date to June 30, 2003. Subsequent to June 30, 2003, Mr. Medina has exercised his option under the relevant loan documents to extend the loans to December 31, 2003. In consideration of Mr. Medina's agreeing to repay his indebtedness to Ocean Bank earlier than otherwise required, pledging the certificate of deposit and personally guaranteeing our credit facility and approximately $21.0 million of construction payables, we entered into an amended and restated employment agreement with him. Under the terms of the amended and restated employment agreement, we will indemnify Mr. Medina from any personal liability related to his guarantees of our debt, use commercially reasonable efforts to relieve Mr. Medina of all his guarantees of our debt, provide up to $6.5 million of cash collateral to Ocean Bank should Mr. Medina be unable to repay the personal loans when due and provide a non interest-bearing $5.0 million loan to Mr. Medina for as long as his guarantees of our debt exist. Mr. Medina and we have agreed that we have the right to withhold payment to him of $1,375,000 in convertible debentures owned by him until the note receivable is repaid. The note receivable from Mr. Medina is shown as an adjustment to equity. The $48.0 million credit facility and the note receivable from Mr. Medina were approved by our board of directors. In July 2002, we and Mr. Medina modified the terms of his $5.0 million non-interest bearing note payable to us. As amended, the note matures December 5, 2004 and bears interest subsequent to September 5, 2002 at 2%, the applicable federal rate. Interest is due in bi-annual installments. We review the collectibility of this note on a quarterly basis. 8 In August 2002, we amended the terms of our Ocean Bank credit facility. The modified credit facility reduced the annual interest rate to 7.50%. Under the terms of the amended facility, the initial maturity date was extended to September 2003 and we had the option to exercise two six-month extension periods each at a cost of 0.5% of the principal balance outstanding together with a principal repayment of $2.5 million. During each extension period, a $250,000 monthly principal repayment plus interest would have been due. At closing, the total amount of the loan was disbursed except for approximately $6.6 million that was held as an interest reserve. Through June 2002, the interest reserve was disbursed monthly to make interest payments. We commenced making monthly interest payments in July 2002. All other material provisions of the credit facility remained unchanged. On April 30, 2003, Ocean Bank revised its $44.0 million credit facility with us by converting $15.0 million of the outstanding principal balance into equity and extending the term of the remaining $29.0 million until April 30, 2006. Concurrent with this transaction, we paid all past due interest as of March 31, 2003, plus accrued interest through April 28, 2003 totaling approximately $1.6 million and prepaid approximately $900,000 of interest. Under the new terms, interest is payable quarterly at an annual rate of 5.25% for the first twelve months and 7.5% thereafter. Construction Payables: On November 8, 2002, CRG, LLC entered into an agreement with Cupertino Electric, Inc. to purchase our entire $18.5 million construction payable (including accrued interest) to Cupertino. Under the terms of their agreement, CRG was to pay Cupertino $8.4 million for the $18.5 million of our debt. On November 11, 2002, we entered into an agreement with CRG that provided us with the option, upon the closing of the purchase of our debt by CRG from Cupertino, to repay the entire debt at a discount by either issuing shares of our common stock valued at $0.75 per share or making a cash payment. On December 5, 2002, CRG entered into an agreement with Kinetics Mechanical Services, Inc. and Kinetics Systems Inc. to purchase our entire $4.1 million construction payable (including accrued interest) to Kinetics. Under the terms of their agreement CRG was to pay Kinetics $1.9 million. On December 5, 2002, we also entered into an agreement with CRG that provided us the option, upon the closing of the purchase of the debt by CRG from Kinetics, to repay the entire debt at a discount by either issuing shares of our common stock valued at $0.75 per share or making a cash payment. On April 30, 2003, CRG LLC completed the purchase, at a discount, of our $22.6 million construction payables (including accrued interest) to Cupertino and Kinetics. Cupertino and Kinetics were construction contractors for the NAP of the Americas. At the closing, the construction payables were converted into 30,133,334 shares of our common stock. CRG was created by Mr. Christian Altaba, one of our shareholders, for the purpose of buying our debt from Cupertino Electric and Kinetics Mechanical Services. None of the participants in CRG were or currently are our officers or directors. There is no affiliation between CRG and Cupertino or Kinetics. CRG is managed by Mr. Altaba. Convertible Debentures: On April 30, 2003, we issued 10% Subordinated Secured Convertible Debentures due April 30, 2006 for an aggregate principal amount of $25.0 million. The debt is convertible into shares of our common stock at $0.50 per share. Interest is payable quarterly beginning July 31, 2003. The debentures were issued in exchange for $10.3 million in cash, $9.5 million in a promissory note due in full May 30, 2003 and $5.2 million of notes payable which were converted into the Subordinated Debentures. Included in the $5.2 million is $2.0 million of cash received in March 2003 in anticipation of the transaction. The maker of the $9.5 million promissory note failed to pay but agreed on June 16, 2003 to assign the note and the debenture to an entity newly formed by the son of one of our directors . Payments received as of August 14, 2003, aggregated approximately $6.9 million and the maturity of the remaining $2.6 million has been 9 extended from August 15, 2003 to September 15, 2003. Two of the Company's directors have guaranteed payment and performance in accordance with the amended terms of the note. Management believes that collection on the remaining balance is reasonably assured. In August 2002, we modified the terms of a note payable to a financial institution. The maturity date was extended until December 2002 with some principal payments to be made monthly and the remaining principal and interest due at maturity. In conjunction with the modification and extension of this note, we issued 400,000 shares of our common stock valued at $180,000 to a shareholder who formerly guaranteed the note. On March 31, 2003, we entered into a forbearance agreement with the lender and modified the terms of our note. Under the modified agreement terms, we made principal payments of $100,000 and $125,000 in April 2003 and May 2003, respectively, and the financial institution retained the right to enforce accelerated remedies if we default on the modified note. We are also required to make seven consecutive monthly principal payments of $25,000 commencing on June 1, 2003, with interest on the outstanding balance to be paid monthly, and a balloon payment on or before December 31, 2003, representing full and final payment of outstanding principal and accrued interest. We have made all required payments under the forbearance agreement. On June 30, 2003, the principal balance of the note was $417,178. As of June 30, 2003, we had not paid approximately $566,000 relating to a lease. We have negotiated a payment plan with the vendor providing for partial payments. Between April 2003 and June 2003, we borrowed an aggregate of $750,000 of short-term debt bearing interest between at 10%. During the same period, we repaid $978,000 of our short-term debt. Guaranties and Commitments The Technology Center of the Americas, LLC, ("TECOTA"), an entity in which we have a 0.84% membership interest, owns the building that leases the space to us for the NAP of the Americas under a 20 year lease. The construction of TECOTA was funded with $48.0 million in equity and $35.4 million in construction financing from a consortium of banks. We guaranteed these construction loans during development and construction of TECOTA. After TECOTA was built, some of the banks released us from the guarantee, the result of which was to reduce the guarantee to $5.5 million. As of June 30, 2003, the TECOTA debt outstanding under the construction loan was $35.4 million. We do not expect to fund any amounts under our guaranty. We guarantee up to $6.5 million in personal debt of Manuel D. Medina, our Chief Executive Officer and Chairman. See "-- Liquidity and Capital Resources" for details. 10 We lease space for our operations, office equipment and furniture under non-cancelable operating leases. Some equipment is also leased under capital leases, which are included in leasehold improvements, furniture and equipment. The following table represents the minimum future operating and capital lease payments for these commitments, as well as the combined aggregate maturities for the following obligations for each of the twelve months ended June 30:
Capital lease obligations Operating leases Notes payable Convertible debt Total ------------ --------------- ------------- ---------------- ------------ 2004 $ 2,203,427 $ 6,022,933 $ 9,341,672 -- $ 17,568,032 2005 709,059 5,901,996 2,336,166 2,750,000 11,697,221 2006 10,117 5,581,098 30,532,012 27,082,381 63,205,608 2007 11,854 5,488,443 46,988 -- 5,547,285 2008 1,616 5,347,842 -- -- 5,349,458 Thereafter -- 69,069,263 -- -- 69,069,263 ------------ ------------ ------------ ------------ ------------ $ 2,936,073 $ 97,411,575 $ 42,256,838 $ 29,832,381 $172,436,867 ============ ============ ============ ============ ============
New Accounting Pronouncements In November 2002, the FASB issued Interpretation No. 45 (FIN 45), "Guarantor's Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others." For guarantees issued or modified after December 31, 2002, a liability will be recognized for the fair value of the obligation undertaken in issuing the guarantee. The disclosure requirements were effective for interim and annual financial statements for periods ending after December 15, 2002. FIN 45 may impact the Company's financial position or results of operations in subsequent periods, if existing guarantees are modified. In January 2003, the FASB issued Interpretation No. 46 (FIN 46), "Consolidation of Variable Interest Entities, an Interpretation of ARB No. 51: This Interpretation provides guidance for determining a primary beneficiary period. The effective date of FIN 46 is the first interim period beginning after June 15, 2003 for variable interest entities acquired before February 1, 2003 and immediately to variable interest entities created after January 31, 2003. NAP de las Americas -- Madrid S.A. may be a variable interest entity in accordance with FIN 46. Our maximum related exposure to loss is approximately $500,000 at June 30, 2003. We do not expect the adoption of FIN 46, effective July 1, 2003, to have a material effect on our financial statements. In March 2003, the FASB reached a consensus on Emerging Issues Task Force (EITF) Issue No. 00-21, "Revenue Arrangements with Multiple Deliverables". The consensus provides guidance on the accounting for multiple element revenue arrangements. It also provided guidance on how to separate multiple element revenue arrangements into its separate units of accounting and how to measure and allocate the arrangement's total consideration to each unit. The effective date of EITF 00-21 is for revenue arrangements entered into in fiscal periods (interim or annual) beginning after June 15, 2003. Early application is permitted. The Company does not expect the adoption of EITF 00-21, effective July 1, 2003, to have a material effect on its financial statements. In April 2003, the FASB issued SFAS No. 149, "Amendment of Statement 133 on Derivative Instruments and Hedging Activities." SFAS No. 149 amends and clarifies accounting for derivative instruments, including certain derivative instruments embedded in other contracts, and for hedging activities under SFAS No. 133. The new guidance amends SFAS No. 133 for decisions made as part of the Derivatives Implementation Group ("DIG") process that effectively required amendments to SFAS No. 133, and decisions made in connection with other FASB projects dealing with financial instruments and in connection with implementation issues raised in relation to the application of the definition of a derivative and characteristics of a derivative that contains financing components. In addition, it clarifies when a derivative contains a financing component that warrants special reporting in the statement of cash flows. SFAS No. 149 is effective for contracts entered into or modified after June 30, 2003 and for hedging relationships designated after June 30, 2003. We do not believe the adoption of SFAS No. 149 will have a material impact on our results of operations and consolidated financial statements. In May 2003, the FASB issued SFAS No. 150, Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity. This Statement requires that an issuer classify financial instruments which are within its scope as a liability. Many of those instruments were classified as equity under previous guidance. Most of the guidance in SFAS No. 150 is effective for all financial instruments entered into or modified after May 31, 2003, and otherwise effective at the beginning of the first interim 11 period beginning after June 15, 2003. The impact of our adoption of SFAS 150 on the Company's consolidated financial statements will be to increase liabilities and decrease mezzanine by the amounts underlying our outstanding Series H redeemable preferred stock. Forward Looking-Information This Annual Report may contain "forward-looking statements" based on our current expectations, assumptions, and estimates about us and our industry. These forward-looking statements involve risks and uncertainties. Words such as "believe," "anticipate," "estimate," "expect," "intend," "plan," "will," "may," and other similar expressions identify forward-looking statements. In addition, any statements that refer to expectations, projections or other characterizations of future events or circumstances are forward-looking statements. Our actual results could differ materially from those anticipated in such forward-looking statements as a result of several factors more fully described in "Risk Factors" and elsewhere in this Annual Report. The forward-looking statements made in this Annual Report relate only to events as of the date on which the statements are made. We undertake no obligation to update publicly any forward-looking statements for any reason, even if new information becomes available or other events occur in the future. Risk Factors OUR RECURRING LOSSES FROM OPERATIONS AND THE LACK OF COMMITTED SOURCES OF ADDITIONAL DEBT OR EQUITY TO SUPPORT WORKING CAPITAL DEFICITS RAISES SUBSTANTIAL DOUBT ABOUT OUR ABILITY TO CONTINUE AS A GOING CONCERN. From the time of our merger with AmTec through June 30, 2003, we have incurred net operating losses of approximately $199.7 million. Our cash flows from operations for the three months ended June 30, 2003 and 2002 were negative and our working capital deficit was approximately $14.0 million and $39.0 million as of June 30, 2003 and March 31, 2003, respectively. The majority of our planned operating cash improvement during our fiscal year 2004 is expected to come from an increase in revenues and cash collections from customers. If we fail to achieve planned revenues of $1.8 million to $2.8 million a month, then we will require additional financing. There can be no assurances that additional financing will be available, or that, if available the financing will be obtainable on terms acceptable to us or that any additional financing would not be substantially dilutive to existing shareholders. If we need to obtain additional financing and fail to do so, it may have a material adverse effect on our ability to meet financial obligations and operate as a going concern. Consequently, recurring losses from operations, the uncertainty surrounding the anticipated increase in revenues, including the rate at which services are sold and the lack of committed sources of additional debt or equity, raises substantial doubt about our ability to continue as a going concern. OUR SUBSTANTIAL LEVERAGE COULD ADVERSELY AFFECT OUR ABILITY TO FULFILL OUR OBLIGATIONS AND OPERATE OUR BUSINESS. As of June 30, 2003, our total liabilities were approximately $87.4 million, obligations guaranteed by us were $10.1 million and our total shareholders' deficit was $10.3 million. Our substantial debt and guarantees could have important consequences to you, including the following: o our substantial leverage increases our vulnerability to economic downturns and adverse competitive and industry conditions and could place us at a competitive disadvantage compared to those of our competitors that are less leveraged; o our debt service obligations could limit our flexibility in planning for, or reacting to, changes in our business and our industry and could limit our ability to pursue other business opportunities, borrow more money for operations or capital in the future and implement our business strategies; 12 o our level of debt may restrict us from raising additional financing on satisfactory terms to fund working capital, capital expenditures, product development efforts, strategic acquisitions, investments and alliances, and other general corporate requirements; o covenants in our debt instruments limit our ability to pay dividends or make other restricted payments and investments; and o our total guarantees are approximately $10.1 million and if we are required to fund under these guarantees our liquidity and cash flows would be adversely affected. WE MAY BE UNABLE TO RAISE THE FUNDS NECESSARY TO REPAY OR REFINANCE OUR INDEBTNESS. We are obligated to make principal and interest payments on our credit facility with Ocean Bank each year until it matures in 2006. Additionally, $61.4 million of our credit facilities mature in 2006. Each of these obligations requires significant amounts of liquidity. We may need additional capital to fund those obligations. Our ability to arrange financing and the cost of this financing will depend upon many factors, including: o general economic and capital markets conditions, and in particular the non-investment grade debt market; o conditions in the Internet infrastructure market; o credit availability from banks or other lenders; o investor confidence in the telecommunications industry generally and our company specifically; and o the success of our TerreNAP Centers. if we need additional funds, our inability to raise them will have an adverse effect on our operations. If we decide to raise additional funds by incurring debt, we may become subject to additional or more restrictive financial covenants and ratios. IF WE DO NOT LOCATE FINANCIAL OR STRATEGIC PARTNERS, WE MAY HAVE TO DELAY OR ABANDON EXPANSION PLANS. Expenditures commence well before a TerreNAP Center opens, and it may take an extended period to approach break-even capacity utilization. It takes a significant period of time to select the appropriate location for a new TerreNAP Center, construct the necessary facilities, install equipment and telecommunications infrastructure and hire operations and sales personnel. As a result, we expect that individual TerreNAP Centers will experience losses for more than one year from the time they are opened. As a part of our TerreNAP Center strategy, we intend to rely on third-party financial or strategic partners to fund the development costs. If we are unable to establish such third-party relationships, we may delay or abandon some or all of our development and expansion plans or otherwise forego market opportunities, making it difficult for us to generate additional revenue and to respond to competitive pressures. OUR OPERATIONS IN BRAZIL AND SPAIN EXPOSE US TO RISKS NOT FACED BY COMPANIES TRANSACTING BUSINESS ONLY IN THE UNITED STATES. We have operations in foreign countries, including NAP facilities, sales personnel and customer support operations in Sao Paulo, Brazil and Madrid, Spain. We intend to 13 expand to other international locations in the future. These operations are subject to economic risks inherent in doing business in foreign countries, including the following: o Disruptions in Foreign Markets. Disruptions in financial markets and the deterioration of the underlying economic conditions in some countries could have an impact on our sales to customers located in, or whose end-user customers are located in, these countries. o Fluctuations in Currency Exchange Rates. Currency instability in geographic markets other than the United States may make our services more expensive than services offered by others that are priced in the local currency. Moreover, many of the costs associated with our operations located outside the United States are denominated in local currencies. As a consequence, the increased strength of local currencies against the U.S. dollar in countries where we have foreign operations would result in higher effective operating costs and, potentially, reduced earnings. Currently, we do not hedge our foreign exchange risk. We cannot assure you that fluctuations in foreign exchange rates will not have a negative effect on our operations and profitability. o Longer Payment Cycles. Our customers outside of the United States are often allowed longer time periods for payment than our U.S. customers. This increases the risk of nonpayment due to the possibility that the financial condition of particular customers may worsen during the course of the payment period. o Tariffs, Duties, Limitations on Trade and Price Controls. Our international operations are affected by limitations on imports, currency exchange control regulations, transfer pricing regulations, price controls and other restraints on trade. In addition, the governments of some countries in which we have operations, have the ability to exercise significant influence over many aspects of their domestic economies and international trade. o Potential Adverse Tax Consequences. Our international operations create a risk of potential adverse tax consequences, including imposition of withholding or other taxes on payments by our customers. o Credit and Access to Capital Risks. Our local financial or strategic partners could have reduced access to working capital due to higher interest rates, reduced bank lending resulting from contractions in the money supply or the deterioration in their financial condition, or the inability to access other financing. o Distributions and other payments from our subsidiaries and affiliates may be subject to foreign taxes. Distributions of earnings and other payments, including interest, we receive from our subsidiaries and affiliates may be subject to withholding taxes imposed by the jurisdictions in which these entities are formed or operating. These taxes would reduce the amount of after-tax cash we would receive from these entities. o New Competitors and Competitive Environment. As we expand our operations in markets outside the United States, we will also encounter new competitors and competitive environments. Our foreign competitors may enjoy a government-sponsored monopoly on telecommunications services essential to our business, and will generally have a better understanding of their local industry and longer working relationships with local infrastructure providers. WE MAY NOT BE ABLE TO COMPETE EFFECTIVELY IN THE MARKET FOR DATA CENTER SERVICES. The market for data center services is extremely competitive and subject to rapid technological change. Our current and 14 potential competitors include providers of data center services, global, regional and local telecommunications companies and Regional Bell Operating Companies, and information technology outsourcing firms. Many of our existing competitors have greater market presence and financial and personnel resources than we do. Our competitors include Internet data centers operated by established communications carriers such as AT&T, Level 3, MCI and Qwest. We also compete with providers of data services centers, regional Bell operating companies that offer Internet access and information technology outsourcing firms. The principal competitive factors in our market include: o ability to deliver services when requested by the customer; o Internet system engineering and other professional services expertise; o customer service; o network capability, reliability, quality of service and scalability; o variety of managed services offered; o access to network resources, including circuits, equipment and interconnection capacity to other networks; o broad geographic presence; o price; o ability to maintain and expand distribution channels; o brand name recognition; o timing of introductions of new services; o physical and network security; o financial resources; and o customer base. Some of our competitors may be able to develop and expand their data center services faster, devote greater resources to the marketing and sale of their products and adopt more aggressive pricing policies than we can. In addition, these competitors have entered and will likely continue to enter into business relationships to provide additional services that compete with the services we provide. OUR PRODUCTS AND SERVICES HAVE A LONG SALES CYCLE THAT MAY MATERIALLY ADVERSELY AFFECT OUR BUSINESS, FINANCIAL CONDITION AND RESULTS OF OPERATIONS. A customer's decision to purchase services at a TerreNAP Center typically involves a significant commitment of resources and will be influenced by, 15 among other things, the customer's confidence in our financial strength. As a result, we have a long sales cycle. Delays due to the length of our sales cycle may materially adversely affect our business, financial condition and results of operations. WE BELIEVE OUR MARKET IS LIKELY TO CONSOLIDATE IN THE NEAR FUTURE, WHICH COULD RESULT IN INCREASED PRICE AND OTHER COMPETITION. Some of our competitors who sell bandwidth may be able to provide customers with additional benefits relating to the customer's Internet system and network management solutions, including reduced local and long distance communications costs, which could reduce the overall costs of their services relative to ours. We may not be able to offset the effects of any price reductions. WE ANTICIPATE THAT AN INCREASING PORTION OF OUR REVENUES WILL BE FROM CONTRACTS WITH AGENCIES OF THE UNITED STATES GOVERNMENT, AND UNCERTAINTIES IN GOVERNMENT CONTRACTS COULD ADVERSELY AFFECT OUR BUSINESS. Generally, U.S. Government contracts are subject to oversight audits by government representatives, to profit and cost controls and limitations, and to provisions permitting modification or termination, in whole or in part, without prior notice, at the government's convenience. In the event of termination, we may receive some allowance for profit on the work performed. In some cases, government contracts are subject to the uncertainties surrounding congressional appropriations or agency funding. Government contracts are subject to specific procurement regulations. Failure to comply with these regulations and requirements could lead to suspension or debarment from future government contracting for a period of time. WE ARE DEPENDENT ON KEY PERSONNEL AND THE LOSS OF THESE KEY PERSONNEL COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR SUCCESS. We are highly dependent on the services of Manuel D. Medina, our Chairman. In an attempt to reduce costs, we have eliminated some management positions. Our potential growth and expansion and the merger and integration of separate businesses, are expected to place increased demands on our management skills and resources. Therefore, our success also depends upon our ability to hire and retain additional skilled and experienced management personnel. Employment and retention of qualified personnel is important due to the competitive nature of our industry. OUR PRESIDENT, CHAIRMAN AND CHIEF EXECUTIVE OFFICER, CANNOT BE REMOVED WITHOUT CAUSE WHICH COULD DELAY, DEFER OR PREVENT CHANGE IN CONTROL OF OUR COMPANY OR IMPEDE A MERGER, CONSOLIDATION, TAKEOVER OR OTHER BUSINESS COMBINATION. Under the terms of our agreement with Manuel D. Medina, our President, Chairman and Chief Executive Officer, as long as Mr. Medina's guarantees of our debt exist, we have agreed to nominate Mr. Medina to our board of directors and not remove Mr. Medina, unless for good cause, or remove any of our officers without Mr. Medina's consent. This could delay, defer or prevent change in control of our company or impede a merger, consolidation, takeover or other business combination that you, as a stockholder, may otherwise view favorably. IF THE PRICE OF OUR SHARES REMAINS LOW OR OUR FINANCIAL CONDITION DETERIORATES, WE MAY BE DELISTED BY THE AMERICAN STOCK EXCHANGE. Our common stock currently trades on the American Stock Exchange (Amex). The Amex requires companies to fulfill specific requirements in order for their shares to continue to be listed. Our securities may be considered for delisting if: (i) our financial condition and operating results appear to be unsatisfactory; (ii) it appears that the extent of public distribution or the aggregate market value of the securities has become so reduced as to make further dealings on the Amex inadvisable; or (iii) we have sustained losses which are so substantial in relation to our overall operations or our existing financial condition has become so impaired that it appears questionable whether we will be able to continue operations and/or meet our obligations as they mature. 16 For example, the Amex may consider suspension or delisting of a stock if the stock has been selling for a substantial period of time at a low price per share. Our common stock has been trading at relatively low prices for the past eighteen months and we have sustained net losses for the past three fiscal years. Therefore, our common stock is at risk of being delisted by the Amex. If our shares are delisted from the Amex, our stockholders could find it difficult to sell our stock. To date we have had no communication from the Amex regarding delisting. If our common stock is delisted from the Amex, we may apply to have our shares quoted on NASDAQ's Bulletin Board or in the "pink sheets" maintained by the National Quotation Bureau, Inc. The Bulletin Board and the "pink sheets" are generally considered to be less efficient markets than the Amex. In addition, if our shares are no longer listed on the Amex or another national securities exchange in the United States, our shares may be subject to the "penny stock"' regulations. If our common stock were to become subject to the penny stock rules it is likely that the price of our common stock would decline and that our stockholders would find it difficult to sell their shares. If our stock were to become delisted we could be in default of various agreements, including the Ocean Bank credit facility. OUR BUSINESS COULD BE HARMED BY PROLONGED ELECTRICAL POWER OUTAGES OR SHORTAGES, OR INCREASED COSTS OF ENERGY. Our NAP facilities are susceptible to regional costs of power, electrical power shortages and planned or unplanned power outages caused by these shortages. A power shortage may result in an increase of the cost of energy, which we may not be able to pass on to our customers. We attempt to limit exposure to system downtime by using backup generators and power supplies. Power outages, which last beyond our backup and alternative power arrangements, could harm our customers and our business. ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK. We have not entered into any financial instruments for trading or hedging purposes. Our carrying values of cash and cash equivalents, accounts receivable, accounts payable and accrued expenses is a reasonable approximation of their fair value. Our exposure to market risk resulting from changes in interest rates relates primarily to our debt. An immediate 10% increase or decrease in current interest rates would furthermore not have a material impact on our debt obligations due to the fixed nature of our debt obligations. The fair market value of our long-term fixed interest rate debt is subject to interest rate risk. Generally, the fair market value of fixed interest rate debt will increase as interest rates fall and decrease as interest rates rise. These interest rate changes may affect the fair market value of the fixed interest rate debt but do not impact our earnings or cash flows. To date, all of our recognized revenue has been denominated in U.S. dollars, generated mostly from customers in the U.S., and our exposure to foreign currency exchange rate fluctuations has been minimal. We expect that future revenues may be derived from operations outside of the U.S. and may be denominated in foreign currency. As a result, future operating results or cash flows could be impacted due to currency fluctuations relative to the U.S. dollar. Furthermore, to the extent we engage in international sales that are denominated in U.S. dollars, an increase in the value of the U.S. dollar relative to foreign currencies could make our services less competitive in the international markets. Although we will continue to monitor our exposure to currency fluctuations, and when appropriate, may use financial hedging techniques in the future to minimize the effect of these fluctuations, we cannot conclude you that exchange rate fluctuations will not adversely affect our financial results in the future. Some of our operating costs are subject to price fluctuations caused by the volatility of underlying commodity prices. The commodity most likely to have an impact on our results of operations in the event of significant price change is electricity. We are closely monitoring the cost of electricity. To the extent that electricity costs rise, we are investigating opportunities to pass these additional power costs onto our 17 customers that utilize this power. We do not employ forward contracts or other financial instruments to hedge commodity price risk. ITEM 4. CONTROLS AND PROCEDURES Based on their evaluation as of a date within 90 days prior to the filing date of this Form 10-Q, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures (as defined in Rules 13a-14(c) and 15d-14(c) under the Securities Exchange Act of 1934, as amended) are effective. There have been no significant changes in internal controls or in other factors that could significantly affect these controls subsequent to the date of their evaluation. PART II. OTHER INFORMATION ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K. (a) No reports were filed on Form 8-K during the quarter of the fiscal year ended June 30, 2003. (b) The following exhibits, which are furnished with this Quarterly Report or incorporated herein by reference, are filed as part of this Quarterly Report. Exhibit Number Exhibit Description ------- ------------------- 10.1 Employment Agreement with Brian K. Goodkind 10.2 Non-qualified Stock Option Agreement for Brian K. Goodkind to purchase 1,278,205 shares of the Company's common stock 10.3 Non-qualified Stock Option Agreement with Brian K. Goodkind to purchase 1,406,795 shares of the Company's common stock 10.4 First Amendment to the Non-qualified Stock Option Agreement with Brian K. Goodkind to purchase 200,000 shares of the Company's common stock 10.5 First Amendment to the Non-qualified Stock Option Agreement with Brian K. Goodkind to purchase 115,000 shares of the Company's common stock 31.1 Certification of the Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 31.2 Certification of the Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 32.1 Certification of the Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 32.2 Certification of the Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 18 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on the 14th day of August 2003. TERREMARK WORLDWIDE, INC. By: /s/ MANUEL D. MEDINA ------------------------------------- Manuel D. Medina, Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) By: /s/ JOSE A. SEGRERA ------------------------------------- Executive Vice President and Chief Financial Officer (Principal Accounting Officer) 19 EX-10.1 3 g84461exv10w1.txt EX-10.1 EMPLOYMENT AGREEMENT WITH BRIAN GOODKIND Exhibit 10.1 AGREEMENT AND MUTUAL RELEASE OF BRIAN K. GOODKIND This Agreement and Mutual Release ("Agreement") is effective as of July 22, 2003 (the "Effective Date") by and between BRIAN K. GOODKIND (hereinafter referred to as "Employee") and TERREMARK WORLDWIDE, INC. (hereinafter referred to collectively with all of its subsidiaries and affiliates and defined as the "Company"). WHEREAS, Employee and the Company (collectively "The Parties") have mutually agreed that it is in their respective best interests to amicably modify their employment relationship, as provided herein. NOW, THEREFORE, in consideration of the acts, payments, covenants and mutual agreements herein described and agreed to be performed, the receipt and sufficiency of which are hereby acknowledged, Employee and the Company agree as follows: 1. TERMINATION OF EMPLOYMENT AGREEMENT. Employee hereby resigns Employee's positions with the Company and all subsidiaries as of the Effective Date, although Employee remains employed pursuant to this Agreement. The Parties agree that the Employment Agreement between Employee and Company dated as of November 5, 2002 (the "Employment Agreement") and all other oral, written, contracts, understandings, promises, agreements, memoranda, commitments and representations (excluding only any agreements between the Company and Employee related to stock options or obligations of indemnity) are hereby void, and of no effect, and rendered a nullity and vitiated and terminated as of the Effective Date, with no terms thereof surviving except as set forth in Section 6 below and herein in this Agreement. Employee represents that as of the date of execution hereof, Employee has returned to the Company all Company property, including but not limited to all copies of business plans, proposals, contracts, sales forecasts, brochures, forms or trip reports, whether in tangible or electronic form. The Company expressly agrees that Employee can retain his laptop and desktop computers and cellular telephone (the "Retained Property"), and hereby transfers title and ownership of the Retained Property to Employee. 2. EMPLOYEE SERVICES. a. Employee agrees to accept "Continued Employment" as a Senior Strategic Advisor to render strategic planning services (the "Services") to the Company from time to time upon the reasonable written request of the Chief Executive Officer of the Company for a period of 12 months from July 22, 2003 (the "Continued Employment Period"). Employee shall not have to perform Services for more than 40 hours in any one month, and the Services shall be rendered at reasonable, mutually agreed upon times. Company will not provide Employee with office space during the Continued Employment Period. Employee is not required to spend any time in, or at, any Company siteor to travel in order to perform the Services. At the expiration or termination by the Employee of the Continued Employment Period, Employee shall execute and deliver to the Company the Separation Agreement and Release attached hereto as Exhibit 1. b. During the Continued Employment Period, Employee may refer to Employee's position as "Senior Strategic Advisor", and agrees to act and represent the Company if and only as the Chief Executive Officer and Employee may mutually agree in writing signed by both of them, from time to time, including, but not limited to: contacts with media; contacts with Company employees; or attending meetings, events, seminars or any other public or private functions on behalf, or purportedly on behalf of the Company. 3. COMPENSATION. a. The Company irrevocably agrees, during the Continued Employment Period, to continue to: (i) pay Employee $9615.38 as base salary on a biweekly basis, through July 22, 2004 (the "Salary"); (ii) withhold applicable taxes on behalf of Employee; and (iii) provide all benefits Employee was receiving immediately prior to the execution of this Agreement, including all medical and dental coverage, various AFLAC and disability insurance coverage, and 401K participation, except that Employee shall not be eligible for any vacation benefits or any bonus that the Company may pay to its employees. b. As additional compensation for, including but not limited, to past performance and any future bonus, the Company has granted to Employee options to purchase 2,685,000 shares of the Company's common stock pursuant to the Terremark Worldwide, Inc. Non-Qualified Stock Option Agreements for Brian K. Goodkind executed by the Company concurrent with the execution of this Agreement that contain certain restrictions on the transfer of the shares that underlie the Options (the "New Option Agreements"). In addition, the Company has amended two of the Employee's pre-existing Stock Option Agreements (the "Amended Option Agreements"). Collectively, the New Option Agreements and the Amended Option Agreements are referred herein as the "Stock Option Agreements." Employee agrees the Stock Option Agreements shall be automatically rescinded and be rendered null and void if he revokes this Agreement pursuant to Section 5. c. It is understood that during the Continued Employment Period, the Company will, if asked, confirm that the Company employs Employee. The Company will make an announcement on July 30, 2003 about Employee's change in position stating that Employee has stepped down as Executive Vice President and Chief Operating Officer. d. After the Continued Employment Period, inquiries made related to the Employee of Employee's work with the Company will be responded to in a manner that is consistent with corporate policy of verifying only the fact of employment, the positions and the length of service. The Employee may seek personal references within the Company with whom Employee feels comfortable. e. Employee and the Company agree that neither party will at any time defame the other (including the Company's directors, shareholders and/or employees) to third parties. Both the Employee and the Company each agree that the Employee's Continued Employment and subsequent departure will be categorized as a mutual decision that was amicable and that the Employee was in good standing. Notwithstanding the prohibition in the preceding sentence, each party shall respond accurately and fully to any question, inquiry, or request for information when required by legal process, or when posed by a governmental entity. - Page 2 of 6 - 4. RELEASE AND COVENANT NOT TO SUE. a. Employee for himself, his spouse and his issue, executors, administrators and assigns to the extent claiming by through or under him, hereby forever releases, discharges, cancels, waives, and acquits the Company and any and all of its affiliates, subsidiaries, corporate parents, agents, directors, officers, employees, attorneys, successors and assigns or any one or entity related or affiliated to any of the foregoing, individually, as well as in their respective capacities in connection with the Company, of and from any and all rights, claims, demands, causes of action, obligations, damages, penalties, fees, costs, expenses, and liability of any nature whatsoever, whether in law or equity, whether known or unknown, whether suspected or not including all oral and written contracts, agreements, memoranda, understandings except those specifically provided for in Section 6 of this Agreement ("Employee Claims"), which Employee has, had or may hereafter have against them, or any of them arising out of, or by reason of, any cause, matter, or thing whatsoever existing as of the date of execution of this Agreement, other than for Employee Claims arising under or pursuant to this Agreement. b. THIS FULL WAIVER OF ALL EMPLOYEE CLAIMS includes, without limitation, except as aforesaid, attorney's fees, any claims, demands, or causes of action arising out of, or relating in any manner whatsoever to, the employment and/or termination of the employment of Employee by the Company, such as, BUT NOT LIMITED TO, any charge, claim, lawsuit or other proceeding arising under the Civil Rights Act of 1866, 1964, 1991, Title VII as amended by the Civil Rights Act of 1991, the Americans With Disabilities Act, the Age Discrimination in Employment Act (ADEA), the Labor Management Relations Act (LMRA), the Employee Retirement Income Security Act (ERISA), the Consolidated Omnibus Budget Reconciliation Act, the Fair Labor Standards Act (FLSA), the Equal Pay Act, the Rehabilitation Act of 1973, the Older Workers Benefit Protection Act, the Family and Medical Leave Act of 1993, Worker's Compensation Claims, or any other constitutional, federal, state, county, or local statute, or any contract, agreement, plan or policy. Employee further covenants and agrees not to institute, nor cause to be instituted, any legal proceeding, including filing any claim or complaint with any government agency alleging any violation of law or public policy against the Company and/or any and all of its affiliates, subsidiaries, corporate parents, directors, agents, officers, owners, employees, successors and assignees or any one or any entity related or affiliated with any of the foregoing premised upon any legal theory or claim whatsoever, including without limitation, contract, tort, wrongful discharge, personal injury, interference with contract, breach of contract, defamation, negligence, infliction of emotional distress, fraud, or deceit, except to enforce the terms of this Agreement. c. Employee acknowledges that the considerations afforded him under this Agreement, including the payments, indemnifications and considerations described in Section 3 above and in other sections of this Agreement, are in full and complete satisfaction of any claims Employee may have, or may have had relating to the Company, including any arising out of his employment with the Company (or any subsidiary) or the termination thereof. Employee represents that there are no charges or claims filed or pending before any agency or court relating to Employee' employment with the Company. Employee represents that as of the date of execution of this Agreement, - Page 3 of 6 - Employee is not aware of and does not have any workers compensation claims or injuries and has no other claims pending. d. Company for itself, and its agents, directors, officers, employees, attorneys, successors and assigns to the extent they may claim by through or under the Company, and Manuel D. Medina, individually, hereby forever releases, discharges, cancels, waives, and acquits the Employee and his spouse and his issue, both in respect of claims by through or under Employee and in their individual capacities, of and from any and all known rights, claims, demands, causes of action, obligations, damages, penalties, fees, costs, expenses, and liability of any nature whatsoever, whether in law or equity, whether known or unknown, whether suspected or not ("Company Claims"), which Company has, had or may hereafter have against them, or any of them arising out of, or by reason of, any cause, matter, or thing whatsoever existing as of the date of execution of this Agreement, other than for Company Claims arising under or pursuant to this Agreement. 5. TIME PERIOD OF CONSIDERING OR CANCELING THIS AGREEMENT. Employee acknowledges that Employee has been offered a period of time of at least twenty-one (21) days to consider whether to sign this Agreement, which Employee hereby waives, and the Company agrees that Employee may cancel this Agreement at any time during the seven (7) days following the date on which this Agreement has been signed by all parties to this Agreement. In order to cancel or revoke this Agreement, Employee must deliver to the Company at 2601 South Bayshore Drive, 9th Floor, Miami FL 33133, attention Employee Relations, written notice stating that Employee is canceling or revoking this Agreement. If this Agreement is timely canceled or revoked, none of the provisions of this Agreement shall be effective or enforceable and the Company shall not be obligated to make the payments to Employee or to provide Employee with the other benefits described in this Agreement, and the Stock Option Agreements shall be automatically rescinded and be rendered null and void. 6. SURVIVAL OF TERMS FROM CERTAIN AGREEMENTS. a. Article 6 of the Employment Agreement ("Article 6") shall survive as provided for in the Employment Agreement; except that section 6.1 of Article 6 regarding non-competition shall be in effect until and expire at the end of the July 22, 2004 and the reference therein regarding termination by "the Company without Cause" or by "the Executive for Good Reason" shall not apply to this Agreement. Employee acknowledges and agrees that (i) the obligations of nondisclosure (6.2) and nonsolicitation (6.3) in Article 6 shall apply during the Continued Employment Period; and (ii) any time period referenced in Article 6, except as modified herein regarding Section 6.1, shall commence running upon the expiration or termination by the Employee of the Continued Employment Period. b. The "Highly Confidential Non-Disclosure Agreement" relating to work with the United States Government shall survive the expiration or termination by the Employee of this Agreement; and c. The Stock Option Agreements referenced in Section 3 hereof shall also survive the expiration or termination by the Employee of this Agreement, but not its revocation pursuant to Section 5 above. - Page 4 of 6 - d. The Separation Agreement and Release to be provided upon completion of the Continued Employment (attached hereto as Exhibit 1). 7. RELIANCE. Employee warrants and represents that: (i) Employee has relied on his own judgment regarding the consideration for and language of this Agreement; (ii) Employee has been given a reasonable period of time to consider this Agreement, has been advised to consult with counsel of Employee's own choosing before signing this Agreement, and has consulted with independent counsel; (iii) Employee is relying on Employee's independent counsel's legal advice after counsel explained all of the terms of this Agreement to Employee; (iv) Employee has not relied on any oral or written representations made to Employee in connection with the negotiation of this Agreement; (v) the Company has not in any way coerced or unduly influenced Employee to execute this Agreement; and (vi) this Agreement is written in a manner that is understandable to Employee and Employee has read and understood all paragraphs of this Agreement. 8. NATURE OF THE AGREEMENT. This Agreement and all provisions thereof, including all representations and promises contained herein, are contractual and not a mere recital and shall continue in permanent force and effect. Except as provided in Sections 3 and 6, above, this Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter hereof, superseding all prior agreements and understandings between The Parties, and there are no agreements of any nature whatsoever between The Parties hereto except as expressly stated herein. This Agreement may not be modified or changed unless done so in writing, signed by both parties. No modification to this Agreement nor any failure or delay in enforcing any term, exercising any option or requiring performance shall be binding or construed as a waiver unless agreed to in writing by the parties. In the event that any portion of this Agreement is found to be unenforceable for any reason whatsoever, the unenforceable provision shall be considered severable, and the remainder of the Agreement shall continue to be in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to choice of law principles. The Parties agree that they have jointly participated in the drafting of this Agreement, and should any provision of this agreement require interpretation or construction, no presumption regarding construction of the document shall apply against one party. 9. NO ADMISSION OF LIABILITY. Nothing contained in this Agreement shall be construed in any manner as an admission by any party that they have violated any statue, law or regulation, or breached any contract or agreement. Employee acknowledges and agrees that, in the event of a breach or threatened breach of any of the foregoing provisions, Company will have no adequate remedy in damages and, accordingly, shall be entitled to injunctive relief against such breach or threatened breach; provided, however, that no specification of a particular legal or equitable remedy shall be construed as a waiver, prohibition or limitation of any legal or equitable remedies in the event of a breach hereof. 10. ATTORNEYS' FEES. If any litigation is commenced between the parties hereto concerning this Agreement, or the rights and duties of the parties in relation to this Agreement, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for attorneys' fees in connection with such litigation, which sum shall be determined by the trier of fact in such litigation or arbitration or in a separate action brought for that purpose. - Page 5 of 6 - 11. SEVERABILITY. The unenforceability of any provision of this Agreement shall not affect the enforceability of any other provision, and this Agreement shall be construed in all respects as if such unenforceable provisions were omitted. 12. FACSIMILE SIGNATURES. Facsimile signatures of this Agreement shall constitute and be accepted as original signatures that shall be binding on the party executing the Agreement. TERREMARK WORLDWIDE, INC. By: /s/ Brian K. Goodkind ---------------------------------- Brian K. Goodkind By: /s/ Jose A. Segrera Date: July 29, 2003 -------------------------------- Name: Jose A. Segrera Title: Executive Vice President and Chief Financial Officer Date: July 29, 2003 By: /s/ Manuel D. Medina -------------------------------------- Manuel D. Medina (in his individual capacity in connection with Section 4(d) only.) Date: July 29, 2003 - Page 6 of 6 - EXHIBIT 1 SEPARATION AGREEMENT AND RELEASES It is understood and agreed by and between Terremark Worldwide, Inc. its subsidiaries, affiliates and successors, and their officers, directors, employees, shareholders, owners, agents and attorneys, and any who take their place (hereinafter "the Company") and Brian K. Goodkind, his spouse, his issue, and anyone claiming by, through or for him (hereinafter "Employee") that the foregoing Parties (hereafter collectively referred to as "The Parties") have ended their relationship as Employer and Employee effective ____________________ ________________________, 2004 ("Effective Date of Termination"). In view of the foregoing, the Company and Employee hereby agree to the following: 1. Employee and the Company have agreed that Employee's employment pursuant to Agreement and Mutual Release of Brian K. Goodkind dated as of July 22, 2003, with the Company terminated on the Effective Date of Termination. Employee acknowledges that he has received all wages and benefits and rights due to him through the Effective Date of Termination. Now, therefore, the only payments, benefits, or other things of value to which Employee is entitled to receive directly from the Company are those set forth in this Agreement. 2. In return for the consideration and benefits, which are set forth below, Employee is willing to waive all of his rights to continued or future employment, and to waive certain claims, past rights, and future rights arising out of the employment relationship, all as set forth in detail below. 3. In consideration for entering into this Agreement, it is understood and agreed that Employee has received the consideration set forth in the Agreement and Mutual Release of Brian K. Goodkind dated as of July 22, 2003. 4. Employee hereby releases the Company, its affiliates, parents, subsidiaries, or related entities, and any who take their place or work for the foregoing, their officers, agents, attorneys, and employees and any who take their place from any and all past or present causes of action, suits, agreements, or claims, from the beginning of the world to the date of this Agreement, whether or not they are presently known to exist, that Employee has or may have against the Company arising out of Employee's employment with the Company and/or the separation of employment with the Company, but excluding any claims under or obligations of the Agreement and Mutual Release of Brian K. Goodkind dated as of July 22, 2003. Employee understands that this release covers, among other things, claims, or rights arising under Constitutional, federal, state, county, local, municipal, or common laws (including tort and oral contract claims). This release also covers, among other things, claims of unlawful discrimination under such laws including, but not limited to age discrimination claims under the Age Discrimination in Employment Act of 1967, and sex, sexual harassment, color, national origin, race, and retaliation claims, among others, under Title VII of the Civil Rights Act of 1964 (as amended), claims under the Family Medical Leave Act, the Americans with Disabilities Act, state and federal Whistleblower Acts, the Immigration Reform and Control Act of 1986, the Occupational Safety and Health Act, the Equal Pay Act of 1963, the Wage and Hour Act, the Employee Retirement Income Security Act, the Consolidated Omnibus Budget Reconciliation Act, and the Page 1 of 3 foregoing and any and all federal, state, county, local, or municipal civil rights, disability, wage, equal pay, labor, or employment acts or laws, as amended. This release also covers, among other things, claims of wrongful termination of employment. Furthermore, Employee waives and relinquishes such rights on behalf of any and all of his dependents, relatives, heirs, survivors or assigns or those claiming by or through him. This is not a complete list, and Employee waives, releases, and discharges, all other rights and claims Employee, or anyone arguably claiming by or through him, has or may have under any and all other federal, state, and local laws, regulations, and ordinances of any kind, including claims for failure to obtain re-employment, reinstatement, or future employment, and for retaliation. This release does not cover any rights or claims based on things that happen after the date of this Agreement. 5. This Agreement was mutually negotiated and is mutually acceptable to the Parties, who dealt with each other at arms-length. Both the Company and Employee have had an opportunity to review the Agreement prior to signing it. Employee was advised to obtain, and afforded the opportunity to consult with, legal counsel or other representative, of his choice and have such counsel or representative review this document before it is signed by Employee. 6. Employee acknowledges that this document does not constitute an admission by the Company of any unlawful act or of any violation of any ordinance, statute, regulation, or other provision of statutory, regulatory, or common law. 7. The Parties agree that if any clause or provision herein is deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining parts, terms, or provisions shall not be affected thereby, and the remainder of this Agreement shall remain in full force and effect. 8. Employee acknowledges that on _________________, the Company gave Employee an unsigned copy of this Agreement and informed Employee that Employee had 21 days from that date to consider it before signing. 9. Employee also acknowledges that the Company has informed Employee that for a period of seven days after the date upon which Employee signs this Agreement, Employee may revoke it. Employee further acknowledges understanding that if Employee revokes this Agreement, Employee will lose all benefits of this Agreement. 10. This Agreement when executed, together with the Agreement and Mutual Release executed by the Parties and effective as of July 22, 2003, covers all understandings between the Company and Employee relating to Employee's employment with and separation from employment with the Company. Excluding the Agreement and Mutual Release, no other expressed or implied, written or oral agreement between the Company and Employee relating to Employee's employment and/or separation from employment with the Company will have any effect, unless it is in writing and is signed and dated by both Parties after the date of the Agreement. 11. Employee, by signature below, acknowledges that Employee has carefully read and considered the contents of this Agreement, and that Employee fully understands all of its provisions and is voluntarily, willingly and knowingly entering into this Agreement. Page 2 of 3 12. Notwithstanding anything contained herein to the contrary, this Separation Agreement and Release has no impact on and does not in way void, modify or alter any written agreement between the parties related to stock options or obligations of indemnity. DATED this _____ day of _______________________, 2004. - ---------------------------- ---------------------------------------- Witness Brian K. Goodkind, Employee - ---------------------------- Witness SWORN TO AND SUBSCRIBED BEFORE me this _____________ day of _______________________________, 2004 by Brian K. Goodkind, who is personally known to me or who has produced ____________________________________ as identification. - ------------------------------------------------ Type/Print Name of Notary: ____________________ Commission Number : ____________________________ Commission expires: ___________________________ Terremark Worldwide, Inc. By: - ---------------------------------- ------------------------------------ Witness - ---------------------------------- Witness SWORN TO AND SUBSCRIBED BEFORE me this ____ day of ________________, 2004 by _______________________________, who is personally known to me or who has produced _____________________________ as identification. - ------------------------------------------------ Type/Print Name of Notary: ____________________ Commission Number : ____________________________ Commission expires: ___________________________ Page 3 of 3 EX-10.2 4 g84461exv10w2.txt EX-10.2 NON-QUALIFIED STOCK OPTION AGREEMENT Exhibit 10.2 TERREMARK WORLDWIDE, INC. NON-QUALIFIED STOCK OPTION AGREEMENT FOR BRIAN K. GOODKIND AGREEMENT 1. GRANT OF OPTION. Terremark Worldwide, Inc. (the "Company") hereby grants, as of July 10, 2003 (the "Date of Grant"), to Brian K. Goodkind (the "Optionee") an option (the "Option") to purchase up to 1,278,205 shares of the Company's Common Stock, $.001 par value per share (the "Stock"), at an exercise price per share equal to $.62. The Option shall be subject to the terms and conditions set forth herein. The Option was issued pursuant to the Company's 2000 Stock Option Plan (the "Plan"), which is incorporated herein for all purposes. The Option is a nonqualified stock option, and not an Incentive Stock Option. The Optionee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all of the terms and conditions hereof and thereof and all applicable laws and regulations. 2. DEFINITIONS. Unless otherwise provided herein, terms used herein that are defined in the Plan and not defined herein shall have the meanings attributed thereto in the Plan. 3. EXERCISE SCHEDULE. The Option shall be exercisable in whole or in part immediately upon the Date of Grant. 4. METHOD OF EXERCISE. The vested portion of this Option shall be exercisable in whole or in part in accordance with the exercise schedule set forth in Section 3 hereof by written notice which shall state the election to exercise the Option, the number of Stock in respect of which the Option is being exercised, and such other representations and agreements as to the holder's investment intent with respect to such Stock as may be required by the Company pursuant to the provisions of the Plan. Such written notice shall be signed by the Optionee and shall be delivered in person or by certified mail to the Secretary of the Company. The written notice shall be accompanied by payment of the exercise price. This Option shall be deemed to be exercised after both (a) receipt by the Company of such written notice accompanied by the exercise price and (b) to the extent required by law, arrangements that are reasonably satisfactory to the Committee have been made for Optionee's payment to the Company of the amount that is necessary to be withheld in accordance with applicable Federal or state withholding requirements. No Stock will be issued pursuant to the Option unless and until such issuance and such exercise shall comply with all relevant provisions of applicable law, including the requirements of any stock exchange upon which the Stock then may be traded. 5. METHOD OF PAYMENT. Payment of the exercise price shall be by any of the following, or a combination thereof, at the election of the Optionee: (a) cash; (b) with Stock that have been held by the Optionee for at least six (6) months (or such other Stock as the Company determines will not cause the Company to recognize for financial accounting purposes a charge for compensation expense), (c) pursuant to a "cashless exercise" procedure, by delivery of a properly executed exercise notice together with such other documentation, and subject to such guidelines, as the Board or Committee shall reasonably require to effect an exercise of the Option, and delivery to the Company by a licensed broker reasonably acceptable to the Company of proceeds from the sale of Stock or a margin loan sufficient to pay the exercise price and any applicable income or employment taxes, or (d) such other consideration or in such other manner as may be determined by the Board or the Committee in its sole discretion. 6. TERMINATION OF OPTION. Any unexercised portion of the Option shall automatically and without notice terminate and become null and void on the tenth anniversary of the Date of Grant. 7. TRANSFERABILITY. The Option granted hereby is not transferable otherwise than by will or under the applicable laws of descent and distribution, and during the lifetime of the Optionee the Option shall be exercisable only by the Optionee, or the Optionee's guardian or legal representative. In addition, the Option shall not be assigned, negotiated, pledged or hypothecated in any way (whether by operation of law or otherwise), and the Option shall not be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, negotiate, pledge or hypothecate the Option, or in the event of any levy upon the Option by reason of any execution, attachment or similar process contrary to the provisions hereof, the Option shall immediately become null and void. 8. RESTRICTIONS AS TO SALE OF STOCK (a) RESTRICTED SHARES. Any shares of Stock acquired upon exercise of the Option specified in Section 1 and (i) all shares of the Company's capital stock received as a dividend or other distribution upon such shares, and (ii) all shares of capital stock or other securities of the Company into which such shares may be changed or for which such shares shall be exchanged, whether through reorganization, recapitalization, stock split-ups or the like, shall be subject to the provisions of this Section 8, and shall hereinafter referred to as "Restricted Shares." (b) NO SALE OR PLEDGE OF RESTRICTED SHARES. Optionee agrees and covenants that during the twenty-four (24) month period commencing on the Date of Grant (the "Restricted Period"), he will not sell or otherwise transfer or dispose of (including but not limited to allowing the foreclosure of a lien interest), and will not permit to be sold or otherwise disposed of or transferred in any manner, either voluntarily or by operation of law (all hereinafter collectively referred to as "Transfers"), all or any portion of the Restricted Shares or any interest therein, except in accordance with and subject to the terms of Section 8(d) hereof. Transfers to a spouse, lineal descendents, a trust for the benefit of a spouse and/or lineal descendents, or other entity of which the transferor and/or his spouse and/or lineal descendents are one hundred percent owners for purposes of estate planning are excluded from the definition of "Transfer" as used in this Agreement and, therefore, are not restricted. (c) TRANSFER AFTER END OF RESTRICTED PERIOD. After the end of the Restricted Period, Optionee shall be entitled to transfer, on a daily basis, the greatest of (i) 15,000 Restricted Shares, (ii) 3.3% of the trading volume of the shares of Common Stock of the Company for the day immediately preceding the day of the Transfer, or (iii) such number of shares of Common Stock as Manuel D. Medina Transfers on a daily basis. (d) CHANGE IN CONTROL. Notwithstanding the foregoing, all provisions of this Section 8 shall immediately terminate, and any legends on the Restricted Shares then held by the 2 Optionee pursuant to Section 8(f) hereof shall immediately be removed, in the event of a Change in Control of the Company. For purposes of this Agreement, the term "Change in Control" shall mean: (i) Approval by the shareholders of the Company of (x) a reorganization, merger, consolidation or other form of corporate transaction or series of transactions, in each case, with respect to which persons who were the shareholders of the Company immediately prior to such reorganization, merger or consolidation or other transaction do not, immediately thereafter, own more than 50% of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated company's then outstanding voting securities, in substantially the same proportions as their ownership immediately prior to such reorganization, merger, consolidation or other transaction, or (y) a liquidation or dissolution of the Company or (z) the sale of all or substantially all of the assets of the Company (unless such reorganization, merger, consolidation or other corporate transaction, liquidation, dissolution or sale is subsequently abandoned); (ii) the acquisition (other than from the Company) by any person, entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act, of more than 30% of either the then outstanding shares of the Company's Common Stock or the combined voting power of the Company's then outstanding voting securities entitled to vote generally in the election of directors (hereinafter referred to as the ownership of a "Controlling Interest") excluding, for this purpose, any acquisitions by (1) the Company or its Subsidiaries, (2) any person, entity or "group" that as of the Commencement Date of this Agreement owns beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a Controlling Interest or (3) any employee benefit plan of the Company or its Subsidiaries. (iii) The resignation of Manuel D. Medina as both Chairman and CEO of the Company, his death, or his absence from the day to day business affairs of the Company for more than 90 consecutive days due to disability or incapacity. (e) PERMISSIBLE TRANSFERS. Notwithstanding Sections (a), (b) and (c) above, if, at any time during the Restricted Period, Manuel D. Medina makes a Transfer of all or a portion of his shares of Common Stock of the Company, then Optionee shall have the right to make a Transfer of that portion of his Restricted Shares equal to (or less than) the amount of shares of Common Stock of the Company that Manuel D. Medina had transferred during that Restricted Period. (f) LEGENDS. If the Optionee exercises the Option within the Restricted Period, the Company shall issue the certificate or certificates representing the shares of Stock subject to the Option being exercised with a legend or legends that the Board or the Committee reasonably deem appropriate and necessary to reflect those restrictions that such shares of Stock are subject to pursuant to Section 8 hereof. 9. NO RIGHTS OF STOCKHOLDERS. Neither the Optionee nor any personal representative (or beneficiary) shall be, or shall have any of the rights and privileges of, a stockholder of the Company with respect to any shares of Stock purchasable or issuable upon the exercise of the Option, in whole or in part, prior to the date of exercise of the Option. 3 10. NO RIGHT TO CONTINUED EMPLOYMENT. Neither the Option nor this Agreement shall confer upon the Optionee any right to continued employment or service with the Company. 11. LAW GOVERNING. This Agreement shall be governed in accordance with and governed by the internal laws of the State of Florida. 12. INTERPRETATION / PROVISIONS OF PLAN CONTROL. This Agreement is subject to all the terms, conditions and provisions of the Plan, including, without limitation, the amendment provisions thereof, and to such rules, regulations and interpretations relating to the Plan adopted by the Plan Committee or the Board as may be in effect from time to time. If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and this Agreement shall be deemed to be modified accordingly. The Optionee accepts the Option subject to all the terms and provisions of the Plan and this Agreement. The undersigned Optionee hereby accepts as binding, conclusive, and final all decisions or interpretations of the Plan Committee or the Board upon any questions arising under the Plan and this Agreement. 13. NOTICES. Any notice under this Agreement shall be in writing and shall be deemed to have been duly given when delivered personally or when deposited in the United States mail, registered, postage prepaid, and addressed, in the case of the Company, to the Chairman of the Plan Committee of the Board of Directors of the Company at the principal office of the Company at Terremark Centre, 2601 South Bayshore Drive, Coconut Grove, Miami, Florida 33133, or if the Company should move its principal office, to such principal office, and, in the case of the Optionee, to the Optionee's last permanent address as shown on the Company's records, subject to the right of either party to designate some other address at any time hereafter in a notice satisfying the requirements of this Section. 14. TAX CONSEQUENCES. Set forth below is a brief summary as of the date of this Option of some of the federal tax consequences of exercise of this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES. (a) EXERCISE OF OPTION. There may be a regular federal income tax liability upon the exercise of the Option. The Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the fair market value of the Stock on the date of exercise over the exercise price. If Optionee is an employee, the Company will be required to withhold from Optionee's compensation or collect from Optionee and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise. (b) DISPOSITION OF STOCK. If Stock are held for at least one year, any gain realized on disposition of the Stock will be treated as long-term capital gain for federal income tax purposes. 4 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 22 day of July, 2003. COMPANY: TERREMARK WORLDWIDE, INC. By: /s/ Jose A. Segrera ------------------------------------- Name: Jose A. Segrera Title: Executive Vice President and Chief Financial Officer Optionee acknowledges receipt of a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts this Option subject to all of the terms and provisions thereof. Optionee has reviewed the Plan and this Option in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option, and fully understands all provisions of the Option. Dated: July 29, 2003 OPTIONEE: ----------------------------- By: /s/ BRIAN K. GOODKIND ------------------------------------- BRIAN K. GOODKIND 5 EX-10.3 5 g84461exv10w3.txt EX-10.3 NON-QUALIFIED STOCK OPTION AGREEMENT Exhibit 10.3 TERREMARK WORLDWIDE, INC. NON-QUALIFIED STOCK OPTION AGREEMENT FOR BRIAN K. GOODKIND AGREEMENT 1. GRANT OF OPTION. Terremark Worldwide, Inc. (the "Company") hereby grants, as of July 10, 2003, to Brian K. Goodkind (the "Optionee") an option (the "Option") to purchase up to 1,406,795 shares of the Company's Common Stock, $0.001 par value per share (the "Stock"), at an exercise price per share equal to $.62. The Option shall be subject to the terms and conditions set forth herein. The Option was issued pursuant to the Company's 1996 Stock Option Plan, amended and restated as of January 1, 1999 (the "Plan"), which is incorporated herein for all purposes. The Option is a nonqualified stock option, and not an Incentive Stock Option. The Optionee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all of the terms and conditions hereof and thereof and all applicable laws and regulations. 2. DEFINITIONS. Unless otherwise provided herein, terms used herein that are defined in the Plan and not defined herein shall have the meanings attributed thereto in the Plan. 3. EXERCISE SCHEDULE. The Option shall be exercisable in whole or in part immediately upon the Date of Grant. 4. METHOD OF EXERCISE. The vested portion of this Option shall be exercisable in whole or in part in accordance with the exercise schedule set forth in Section 3 hereof by written notice which shall state the election to exercise the Option, the number of Stock in respect of which the Option is being exercised, and such other representations and agreements as to the holder's investment intent with respect to such Stock as may be required by the Company pursuant to the provisions of the Plan. Such written notice shall be signed by the Optionee and shall be delivered in person or by certified mail to the Secretary of the Company. The written notice shall be accompanied by payment of the exercise price. This Option shall be deemed to be exercised after both (a) receipt by the Company of such written notice accompanied by the exercise price and (b) to the extent required by law, arrangements that are reasonably satisfactory to the Committee have been made for Optionee's payment to the Company of the amount that is necessary to be withheld in accordance with applicable Federal or state withholding requirements. No Stock will be issued pursuant to the Option unless and until such issuance and such exercise shall comply with all relevant provisions of applicable law, including the requirements of any stock exchange upon which the Stock then may be traded. 5. METHOD OF PAYMENT. Payment of the exercise price shall be by any of the following, or a combination thereof, at the election of the Optionee: (a) cash; (b) with Stock that have been held by the Optionee for at least six (6) months (or such other Stock as the Company determines will not cause the Company to recognize for financial accounting purposes a charge for compensation expense), (c) pursuant to a "cashless exercise" procedure, by delivery of a properly executed exercise notice together with such other documentation, and subject to such guidelines, as the Board or Committee shall reasonably require to effect an exercise of the Option, and delivery to the Company by a licensed broker reasonably acceptable to the Company of proceeds from the sale of Stock or a margin loan sufficient to pay the exercise price and any applicable income or employment taxes, or (d) such other consideration or in such other manner as may be determined by the Board or the Committee in its sole discretion. 6. TERMINATION OF OPTION. Any unexercised portion of the Option shall automatically and without notice terminate and become null and void on the tenth anniversary of the Date of Grant. 7. TRANSFERABILITY. The Option granted hereby is not transferable otherwise than by will or under the applicable laws of descent and distribution, and during the lifetime of the Optionee the Option shall be exercisable only by the Optionee, or the Optionee's guardian or legal representative. In addition, the Option shall not be assigned, negotiated, pledged or hypothecated in any way (whether by operation of law or otherwise), and the Option shall not be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, negotiate, pledge or hypothecate the Option, or in the event of any levy upon the Option by reason of any execution, attachment or similar process contrary to the provisions hereof, the Option shall immediately become null and void. 8. RESTRICTIONS AS TO SALE OF STOCK (a) RESTRICTED SHARES. Any shares of Stock acquired upon exercise of the Option specified in Section 1 and (i) all shares of the Company's capital stock received as a dividend or other distribution upon such shares, and (ii) all shares of capital stock or other securities of the Company into which such shares may be changed or for which such shares shall be exchanged, whether through reorganization, recapitalization, stock split-ups or the like, shall be subject to the provisions of this Section 8, and shall hereinafter referred to as "Restricted Shares." (b) NO SALE OR PLEDGE OF RESTRICTED SHARES. Optionee agrees and covenants that during the twenty-four (24) month period commencing on the Date of Grant (the "Restricted Period"), he will not sell or otherwise transfer or dispose of (including but not limited to allowing the foreclosure of a lien interest), and will not permit to be sold or otherwise disposed of or transferred in any manner, either voluntarily or by operation of law (all hereinafter collectively referred to as "Transfers"), all or any portion of the Restricted Shares or any interest therein, except in accordance with and subject to the terms of Section 8(d) hereof. Transfers to a spouse, lineal descendents, a trust for the benefit of a spouse and/or lineal descendents, or other entity of which the transferor and/or his spouse and/or lineal descendents are one hundred percent owners for purposes of estate planning are excluded from the definition of "Transfer" as used in this Agreement and, therefore, are not restricted. (c) TRANSFER AFTER END OF RESTRICTED PERIOD. After the end of the Restricted Period, Optionee shall be entitled to transfer, on a daily basis, the greatest of (i) 15,000 Restricted Shares, (ii) 3.3% of the trading volume of the shares of Common Stock of the Company for the day immediately preceding the day of the Transfer, or (iii) such number of shares of Common Stock as Manuel D. Medina Transfers on a daily basis. 2 (d) CHANGE IN CONTROL. Notwithstanding the foregoing, all provisions of this Section 8 shall immediately terminate, and any legends on the Restricted Shares then held by the Optionee pursuant to Section 8(f) hereof shall immediately be removed, in the event of a Change in Control of the Company. For purposes of this Agreement, the term "Change in Control" shall mean: (i) Approval by the shareholders of the Company of (x) a reorganization, merger, consolidation or other form of corporate transaction or series of transactions, in each case, with respect to which persons who were the shareholders of the Company immediately prior to such reorganization, merger or consolidation or other transaction do not, immediately thereafter, own more than 50% of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated company's then outstanding voting securities, in substantially the same proportions as their ownership immediately prior to such reorganization, merger, consolidation or other transaction, or (y) a liquidation or dissolution of the Company or (z) the sale of all or substantially all of the assets of the Company (unless such reorganization, merger, consolidation or other corporate transaction, liquidation, dissolution or sale is subsequently abandoned); (ii) the acquisition (other than from the Company) by any person, entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act, of more than 30% of either the then outstanding shares of the Company's Common Stock or the combined voting power of the Company's then outstanding voting securities entitled to vote generally in the election of directors (hereinafter referred to as the ownership of a "Controlling Interest") excluding, for this purpose, any acquisitions by (1) the Company or its Subsidiaries, (2) any person, entity or "group" that as of the Commencement Date of this Agreement owns beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a Controlling Interest or (3) any employee benefit plan of the Company or its Subsidiaries. (iii) The resignation of Manuel D. Medina as both Chairman and CEO of the Company, his death, or his absence from the day to day business affairs of the Company for more than 90 consecutive days due to disability or incapacity. (e) PERMISSIBLE TRANSFERS. Notwithstanding Sections (a), (b) and (c) above, if, at any time during the Restricted Period, Manuel D. Medina makes a Transfer of all or a portion of his shares of Common Stock of the Company, then Optionee shall have the right to make a Transfer of that portion of his Restricted Shares equal to (or less than) the amount of shares of Common Stock of the Company that Manuel D. Medina had transferred during that Restricted Period. (f) LEGENDS. If the Optionee exercises the Option within the Restricted Period, the Company shall issue the certificate or certificates representing the shares of Stock subject to the Option being exercised with a legend or legends that the Board or the Committee reasonably deem appropriate and necessary to reflect those restrictions that such shares of Stock are subject to pursuant to Section 8 hereof. 9. NO RIGHTS OF STOCKHOLDERS. Neither the Optionee nor any personal representative (or beneficiary) shall be, or shall have any of the rights and privileges of, a stockholder of the 3 Company with respect to any shares of Stock purchasable or issuable upon the exercise of the Option, in whole or in part, prior to the date of exercise of the Option. 10. NO RIGHT TO CONTINUED EMPLOYMENT. Neither the Option nor this Agreement shall confer upon the Optionee any right to continued employment or service with the Company. 11. LAW GOVERNING. This Agreement shall be governed in accordance with and governed by the internal laws of the State of Florida. 12. INTERPRETATION / PROVISIONS OF PLAN CONTROL. This Agreement is subject to all the terms, conditions and provisions of the Plan, including, without limitation, the amendment provisions thereof, and to such rules, regulations and interpretations relating to the Plan adopted by the Plan Committee or the Board as may be in effect from time to time. If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and this Agreement shall be deemed to be modified accordingly. The Optionee accepts the Option subject to all the terms and provisions of the Plan and this Agreement. The undersigned Optionee hereby accepts as binding, conclusive, and final all decisions or interpretations of the Plan Committee or the Board upon any questions arising under the Plan and this Agreement. 13. NOTICES. Any notice under this Agreement shall be in writing and shall be deemed to have been duly given when delivered personally or when deposited in the United States mail, registered, postage prepaid, and addressed, in the case of the Company, to the Chairman of the Plan Committee of the Board of Directors of the Company at the principal office of the Company at Terremark Centre, 2601 South Bayshore Drive, Coconut Grove, Miami, Florida 33133, or if the Company should move its principal office, to such principal office, and, in the case of the Optionee, to the Optionee's last permanent address as shown on the Company's records, subject to the right of either party to designate some other address at any time hereafter in a notice satisfying the requirements of this Section. 14. TAX CONSEQUENCES. Set forth below is a brief summary as of the date of this Option of some of the federal tax consequences of exercise of this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES. (a) EXERCISE OF OPTION. There may be a regular federal income tax liability upon the exercise of the Option. The Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the fair market value of the Stock on the date of exercise over the exercise price. If Optionee is an employee, the Company will be required to withhold from Optionee's compensation or collect from Optionee and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise. 4 (b) DISPOSITION OF STOCK. If Stock are held for at least one year, any gain realized on disposition of the Stock will be treated as long-term capital gain for federal income tax purposes. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 22nd day of July, 2003. COMPANY: TERREMARK WORLDWIDE, INC. By: /s/ Jose A. Segrera -------------------------------------- Name: Jose A. Segrera Title: Executive Vice President and Chief Financial Officer Optionee acknowledges receipt of a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts this Option subject to all of the terms and provisions thereof. Optionee has reviewed the Plan and this Option in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option, and fully understands all provisions of the Option. Dated: July 29, 2003 OPTIONEE: By: /s/ Brian K. Goodkind ------------------------------------- BRIAN K. GOODKIND 5 EX-10.4 6 g84461exv10w4.txt EX-10.4 FIRST AMENDMENT TO THE NON-QUALIFIED STOCK Exhibit 10.4 FIRST AMENDMENT TO THE TERREMARK WORLDWIDE, INC. NONQUALIFIED STOCK OPTION AGREEMENT DATED APRIL 1, 2003 BY AND BETWEEN TERREMARK WORLDWIDE, INC. AND BRIAN K. GOODKIND THIS FIRST AMENDMENT is made effective as of July 22, 2003, by TERREMARK WORLDWIDE, INC., a Delaware corporation (the "Corporation") and BRIAN K. GOODKIND ("Optionee"). W I T N E S S E T H: - - - - - - - - - - WHEREAS, the Corporation and Optionee entered into that certain Nonqualified Stock Option Agreement, dated April 1, 2003 (the "Option Agreement") whereby the Corporation granted Optionee an option to purchase 200,000 shares of the common stock of the Corporation, with an option price of $.33 per share, subject to a vesting schedule (the "Option"), and WHEREAS, the Option was granted pursuant to the terms, provisions and conditions of the Corporation's 2000 Stock Option Plan (the "Plan"), and WHEREAS, pursuant to Section 16 of the Plan, the Corporation reserved the right to amend said Option Agreement, with the consent of the Optionee; and WHEREAS, in consideration for past services, the Corporation and Optionee have mutually agreed to accelerate the vesting of his Options and extend the term within which Optionee may exercise such Options; NOW, THEREFORE, effective as of July 22, 2003, the Option Agreement shall be amended as follows: 1. Section 3 is hereby deleted in its entirety and replaced with the following: "3. Exercise Schedule. This Option shall be immediately and fully exercisable, in whole or in part, effective as of July 22, 2003." 2. Section 4 is hereby amended so that clause 4(b) reads as follows: "(b) to the extent required by law, arrangements that are reasonably satisfactory to the Committee have been made for Optionee's payment to the Company of the amount that is necessary to be withheld in accordance with applicable Federal or state withholding requirements." 3. Section 5 is hereby amended to add the following at the end thereof: "In addition, Optionee may exercise this Option pursuant to a "cashless exercise" procedure, by delivery of a properly executed exercise notice together with such other documentation, and subject to such guidelines, as the Board or Committee shall reasonably require to effect an exercise of the Option, and delivery to the Company by a licensed broker reasonably acceptable to the Company of proceeds from the sale of Stock or a margin loan sufficient to pay the exercise price and any applicable income or employment taxes." 4. Section 6 is hereby deleted in its entirety and replaced with the following: "6. Termination of Option. Any unexercised portion of the Option shall automatically and without notice terminate and become null and void on April 1, 2013." 5. In all other respects, the Option Agreement shall remain unchanged by this Amendment. IN WITNESS WHEREOF, the parties have caused this instrument to be executed the day and year first above written. TERREMARK WORLDWIDE, INC. By: /s/ Jose A. Segrera ------------------------------------- Name: Jose A. Segrera Title: Executive Vice President and Chief Financial Officer OPTIONEE /s/ Brian K. Goodkind ----------------------------------------- BRIAN K. GOODKIND 2 EX-10.5 7 g84461exv10w5.txt EX-10.5 FIRST AMENDMENT TO THE NON-QUALIFIED STOCK Exhibit 10.5 FIRST AMENDMENT TO THE TERREMARK WORLDWIDE, INC. NONQUALIFIED STOCK OPTION AGREEMENT DATED APRIL 2, 2002 BY AND BETWEEN TERREMARK WORLDWIDE, INC. AND BRIAN K. GOODKIND THIS FIRST AMENDMENT is made effective as of July 22, 2003, by TERREMARK WORLDWIDE, INC., a Delaware corporation (the "Corporation") and BRIAN K. GOODKIND ("Optionee"). W I T N E S S E T H: - - - - - - - - - - WHEREAS, the Corporation and Optionee entered into that certain Nonqualified Stock Option Agreement, dated April 2, 2002 (the "Option Agreement") whereby the Corporation granted Optionee an option to purchase 115,000 shares of the common stock of the Corporation, with an option price of $.51 per share, subject to a vesting schedule (the "Option"), and WHEREAS, the Option was granted pursuant to the terms, provisions and conditions of the Corporation's 2000 Stock Option Plan (the "Plan"), and WHEREAS, pursuant to Section 16 of the Plan, the Corporation reserved the right to amend said Option Agreement, with the consent of the Optionee; and WHEREAS, in consideration for past services, the Corporation and Optionee have mutually agreed to accelerate the vesting of his Options and extend the term within which Optionee may exercise such Options; NOW, THEREFORE, effective as of July 22, 2003, the Option Agreement shall be amended as follows: 6 1. Section 3 is hereby deleted in its entirety and replaced with the following: "3. EXERCISE SCHEDULE. This Option shall be immediately and fully exercisable, in whole or in part, effective as of July 22, 2003." 2. Section 4 is hereby amended so that clause 4(b) reads as follows: "(b) to the extent required by law, arrangements that are reasonably satisfactory to the Committee have been made for Optionee's payment to the Company of the amount that is necessary to be withheld in accordance with applicable Federal or state withholding requirements." 3. Section 5 is hereby amended to add the following at the end thereof: "In addition, Optionee may exercise this Option pursuant to a "cashless exercise" procedure, by delivery of a properly executed exercise notice together with such other documentation, and subject to such guidelines, as the Board or Committee shall reasonably require to effect an exercise of the Option, and delivery to the Company by a licensed broker reasonably acceptable to the Company of proceeds from the sale of Stock or a margin loan sufficient to pay the exercise price and any applicable income or employment taxes." 4. Section 6 is hereby deleted in its entirety and replaced with the following: "6. TERMINATION OF OPTION. Any unexercised portion of the Option shall automatically and without notice terminate and become null and void on April 2, 2012." 5. In all other respects, the Option Agreement shall remain unchanged by this Amendment. IN WITNESS WHEREOF, the parties have caused this instrument to be executed the day and year first above written. TERREMARK WORLDWIDE, INC. By: /s/ Jose A. Segrera ------------------------------------- Name: Jose A. Segrera Title: Executive Vice President and Chief Financial Officer OPTIONEE /s/ Brian K. Goodkind ----------------------------------------- BRIAN K. GOODKIND 2 EX-31.1 8 g84461exv31w1.txt EX-31.1 SECTION 302 CERTIFICATION OF CEO Exhibit 31.1 CERTIFICATION I, Manuel D. Medina, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Terremark Worldwide, Inc. (the "Registrant"); 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report; 4. The Registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Registrant and we have: (a) designed such disclosure controls and procedures or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) evaluated the effectiveness of the Registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; (c) disclosed in this report any change in the Registrant's internal control over financial reporting that occurred during the Registrant's most recent fiscal quarter (the Registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant's internal control over financial reporting; and 5. The Registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant's auditors and the audit committee of Registrant's board of directors (or persons performing the equivalent function): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant's ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant's internal control over financial reporting. Date: August 13, 2003 /s/ Manuel D. Medina ----------------------------------- Manuel D. Medina Chairman, President and Chief Executive Officer EX-31.2 9 g84461exv31w2.txt EX-31.2 SECTION 302 CERTIFICATION OF CFO Exhibit 31.2 CERTIFICATION I, Jose A. Segrera, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Terremark Worldwide, Inc. (the "Registrant"); 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report; 4. The Registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Registrant and we have: (a) designed such disclosure controls and procedures or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) evaluated the effectiveness of the Registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; (c) disclosed in this report any change in the Registrant's internal control over financial reporting that occurred during the Registrant's most recent fiscal quarter (the Registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant's internal control over financial reporting; and 5. The Registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant's auditors and the audit committee of Registrant's board of directors (or persons performing the equivalent function): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant's ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant's internal control over financial reporting. Date: August 13, 2003 /s/ Jose A. Segrera ----------------------------------------- Jose A. Segrera Chief Financial Officer EX-32.1 10 g84461exv32w1.txt EX-32.1 SECTION 906 CERTIFICATION OF CEO Exhibit 32.1 CERTIFICATION PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 I, Manuel D. Medina, hereby certify, pursuant to 18 U.S.C.ss.1350, as adopted pursuant to ss.906 of the Sarbanes-Oxley Act of 2002, that: (1) The accompanying quarterly report on Form 10-Q for the fiscal quarter ended June 30, 2003 fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended; and (2) The information contained in such report fairly presents, in all material respects, the financial condition and result of operations of Terremark Worldwide, Inc. Date: August 13, 2003 /s/ Manuel D. Medina ----------------------------------------- Manuel D. Medina Chief Executive Officer EX-32.2 11 g84461exv32w2.txt EX-32.2 SECTION 906 CERTIFICATION OF CFO Exhibit 32.2 CERTIFICATION PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 I, Jose A. Segrera, hereby certify, pursuant to 18 U.S.C.ss.1350, as adopted pursuant to ss.906 of the Sarbanes-Oxley Act of 2002, that: (1) The accompanying quarterly report on Form 10-Q for the fiscal quarter ended June 30, 2003 fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended; and (2) The information contained in such report fairly presents, in all material respects, the financial condition and result of operations of Terremark Worldwide, Inc. Dated: August 13, 2003 /s/ Jose A. Segrera ----------------------------------------- Jose A. Segrera Chief Financial Officer -----END PRIVACY-ENHANCED MESSAGE-----